           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Caver v. Straub                              No. 01-2649
        ELECTRONIC CITATION: 2003 FED App. 0410P (6th Cir.)
                    File Name: 03a0410p.06                                Elizabeth L. Jacobs, Detroit, Michigan, for Appellee.
                                                                          ON BRIEF: Debra M. Gagliardi, OFFICE OF THE
                                                                          ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
UNITED STATES COURT OF APPEALS                                            Elizabeth L. Jacobs, Detroit, Michigan, for Appellee.
                  FOR THE SIXTH CIRCUIT                                     HOOD, D. J., delivered the opinion of the court, in which
                    _________________                                     MOORE, J., joined. ROGERS, J. (pp. 22-23), delivered a
                                                                          separate concurring opinion.
 ROBERT LEE CAVER ,               X
          Petitioner-Appellee, -                                                              _________________
                                   -
                                   -  No. 01-2649                                                 OPINION
           v.                      -                                                          _________________
                                    >
                                   ,                                         HOOD, District Judge. Robert Lee Caver was convicted
 DENNIS M. STRAUB, Warden,         -                                      for violating Michigan Compiled Laws § 750.89, assault with
       Respondent-Appellant. -                                            intent to rob being armed. After exhausting his direct and
                                  N                                       state-collateral appeals, Caver filed a federal petition for a
      Appeal from the United States District Court                        writ of habeas corpus, alleging the ineffectiveness of his trial
     for the Eastern District of Michigan at Detroit.                     and appellate counsel. The district court below found that
    No. 00-70903—Arthur J. Tarnow, District Judge.                        Caver had demonstrated cause and prejudice sufficient to
                                                                          excuse the procedural default of his ineffective assistance of
                      Argued: May 2, 2003                                 trial counsel claim by demonstrating the ineffectiveness of his
                                                                          appellate counsel. Accordingly, the district court granted
            Decided and Filed: November 19, 2003                          Caver’s petition for a writ of habeas corpus under 28 U.S.C.
                                                                          § 2254. The Michigan Attorney General appeals from the
 Before: MOORE and ROGERS, Circuit Judges; HOOD,                          district court decision, arguing that (1) the ineffective
                 District Judge.*                                         assistance of appellate counsel claim was procedurally
                                                                          defaulted, and (2) assuming that the ineffective assistance of
                      _________________                                   appellate counsel claim was not procedurally defaulted, the
                                                                          district court erred in finding that the state collateral courts
                            COUNSEL                                       had unreasonably applied clearly established federal law. For
                                                                          the reasons that follow, we affirm.
ARGUED: Debra M. Gagliardi, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellant.                                   I. Factual and Procedural History
                                                                            On October 1, 1992, Robert Lee Caver was convicted in the
                                                                          Detroit Recorder’s Court of assault with intent to commit
    *
     The Honorable Joseph M. Hood, United States District Judge for the   armed robbery and two counts of attempted assault with
Eastern District of Kentucky, sitting by designation.

                                  1
No. 01-2649                                Caver v. Straub       3    4          Caver v. Straub                                   No. 01-2649

intent to commit armed robbery. Caver was prosecuted for                    (11) Failed to remain with Defendant immediately after
entering and looting a local drug house with two other men                  jury retired to deliberate, where within minutes the Jury
while impersonating federal law enforcement agents. Caver                   sent a note requesting to see evidence etc.. [sic] and
is currently imprisoned only for assault with intent to commit              Counsel was not present....
armed robbery, as he has completed his sentences on the
remaining convictions.                                                Caver based his claim of ineffective appellate counsel on his
                                                                      appellate attorney’s failure to raise these issues of ineffective
   Caver directly appealed his convictions, asserting that the        trial counsel. The trial court denied Caver’s motion, finding
trial court erred in instructing the jury and that there was          that Caver had not demonstrated the “good cause” or
insufficient evidence regarding assault to support the verdict.       prejudice required under M.C.R. 6.508(D)1 to excuse his
The Michigan Court of Appeals affirmed Caver’s convictions.           failure to present the issues on his direct appeal. The court
Caver then filed a delayed, pro se application for leave to           also concluded that Caver’s ineffective assistance of trial
appeal to the Michigan Supreme Court. Caver’s application             counsel claim was without merit and could not satisfy the
reasserted the earlier-alleged errors plus two new issues. One        “good cause” requirement of M.C.R. 6.508(D)(3) “because
claim asserted that Caver’s appellate counsel, Neil Leithauser,       appellate counsel is not required to raise every non-frivolous
had failed to investigate certain allegedly meritorious issues.       issue on appeal.” Jones v. Barnes, 463 U.S. 795 (1983). The
While he did generally state that he had wished to pursue an          Michigan Court of Appeal denied Caver’s delayed appeal and
ineffective assistance of trial counsel claim, Caver did not          his motion for rehearing, which was, in substance, identical
allege that Leithauser failed to investigate or pursue the            to his brief before the district court. The appellate court
absence of Caver’s trial counsel, Samuel Simon, during the            concluded that Caver had failed to meet the burden of
court’s response to the jury note or during the subsequent jury       establishing entitlement to relief under M.C.R. 6.508(D).
re-instruction. The Michigan Supreme Court denied Caver’s
delayed application for leave to appeal.
                                                                             1
                                                                            “Subchapter 6.500 of the Michigan Court Rules establishes the
   Next, Caver filed a motion for relief from judgment in the         procedures for pursuing post-appeal relief from criminal convictions. The
trial court, alleging, inter alia, the ineffectiveness of his trial   subchapter is the exclusive means to challenge a conviction in Michigan
and appellate counsel. The motion referred to two instances           once a defendant has exhausted the normal appellate process.” People v.
of trial counsel ineffectiveness relevant to this appeal:             Reed, 499 N .W.2d 441, 443 n.1 (Mich. Ct. App. 1993 ), aff’d 535 N.W.2d
                                                                      496 (1995). Michigan Court Rule 6.508(D) limits the co urt’s ability to
                                                                      grant relief. See M.C.R. 6.50 8(D ). The rule reads, in p ertinent part,
  Defendant Caver’s Trial Counsel ...
                                                                             The court may not grant relief to the defendant if the motion:
  (9) Failed to be present during Open Court proceeding’s                    ...
  [sic] (during Jury Instructions), Counsel wasn’t present                   (3) alleges grounds for relief, other than jurisdictional defects,
  and Defendant was placed back in [sic] bullpen, and                        which could have been raised on appeal from the conviction and
  Defendant nor Counsel [sic] present during open court                      sentence or in a prior motion under this subchapter, unless the
                                                                             defendant demonstrates
  proceedings of his trial;                                                       (a) good cause for failure to raise such grounds on
                                                                                  appeal or in the prior motion, and
  ...                                                                             (b) actual prejudice from the alleged irregularities that
                                                                                  supp ort the claim for relief.
                                                                      Id.
No. 01-2649                                    Caver v. Straub         5    6      Caver v. Straub                             No. 01-2649

   Caver then filed an application for leave to appeal to the               errors. After an evidentiary hearing, the district court granted
Michigan Supreme Court. This application was notably                        Caver’s petition. The district court found that Caver’s
different from Caver’s earlier briefs in that Caver separated               appellate counsel had been ineffective in failing to raise the
the presentation of his ineffective assistance of trial counsel             ineffectiveness of Caver’s trial counsel on direct appeal, thus
claims and his ineffective assistance of appellate counsel                  establishing both a separate constitutional defect and cause
claims. In treating his trial counsel claims, Caver again                   and prejudice sufficient to excuse the procedural default of
presented paragraphs nine and eleven, which alleged the                     Caver’s claim of ineffective assistance of trial counsel. The
absence of trial counsel when the court received a note back                Attorney General now appeals the decision of the district
from the jury and again when the court went on to re-instruct               court.
the jury. Caver’s treatment of his appellate counsel claims,
however differed from his earlier applications. In Caver’s                                      II. Standard of Review
application to the Michigan Supreme Court, unlike his earlier
claims, he failed to argue that appellate counsel was                          Appellate courts, in reviewing federal habeas corpus
ineffective for failing to present the ineffectiveness of Caver’s           proceedings, examine the district court's legal conclusions de
trial counsel for being absent during critical stages of the trial.         novo and its factual findings under a "clearly erroneous"
Instead, Caver asserted that appellate counsel was ineffective              standard. Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir. 1999).
in not alleging trial counsel’s ineffectiveness in failing to
object to certain testimony, failing to cross-examine                         The Antiterrorism and Effective Death Penalty Act of 1996
witnesses, and failing to investigate the illegality of Caver’s             (“AEDPA”) was enacted on April 24, 1996. Antiterrorism
arrest and his alibi. Caver also asserted appellate counsel’s               and Effective Death Penalty Act of 1996, Pub. L. No. 104-
ineffectiveness in failing to assert error respecting the trial             132, 110 Stat. 1214 (1996) (relevant portions codified as
court’s refusal to allow the testimony of res gestae witnesses.             amended at 28 U.S.C. § 2254). Caver filed his petition for
Caver’s application did also provide general statements of his              relief on February 17, 2000. Caver’s petition, therefore, is
appellate counsel’s ineffectiveness,2 but these general                     governed by 28 U.S.C. § 2254(d)(1), as amended by AEDPA.
statements appear to be in connection with his specifically-                See Williams v. Taylor, 529 U.S. 362, 402 (2000). Under the
alleged instances of appellate counsel’s ineffectiveness. The               amended statute, a writ of habeas corpus
Michigan Supreme Court denied Caver’s application for leave
to appeal, concluding that Caver had failed to meet his burden                  may issue only if ... the state-court adjudication resulted
under M.C.R. 6.508(D).                                                          in a decision that either (1) “was contrary to ... clearly
                                                                                established Federal law, as determined by the Supreme
  On February 17, 2000, Caver filed a petition for a writ of                    Court of the United States,” or (2) “involved an
habeas corpus with the United States District Court for the                     unreasonable application of ... clearly established Federal
Eastern District of Michigan, alleging ineffective assistance                   law, as determined by the Supreme Court of the United
of trial and appellate counsel, among other constitutional                      States.
                                                                            Id. at 412 (quoting 28 U.S.C. § 2254(d)(1)).
    2
      For example, Caver did argue tha t “defendant was de nied his Sixth
Amendm ent right to effective assistance of appellate counsel when his
attorne y failed to adeq uately and compe tently represent him.”
No. 01-2649                               Caver v. Straub       7    8      Caver v. Straub                              No. 01-2649

                       III. Discussion                               B. Caver Did Not Procedurally Default His Ineffective
                                                                        Assistance of Trial Counsel Claim
A. The Court Need Not Reach Whether or Not Caver
   Procedurally Defaulted His Ineffective Assistance of                The Attorney General also argues that Caver procedurally
   Appellate Counsel Claims Because the State Failed to              defaulted his trial counsel claim. As described above,
   Raise the Issue in Proceedings Before the District                exhaustion occurs where a petitioner gives the state courts a
   Court                                                             fair and full opportunity to rule on his claims by fairly
                                                                     presenting all claims to the highest court in the state in which
  The Attorney General asserts that Caver did not fairly             the petitioner was convicted. See Rust v. Zent, 17 F.3d 155,
present, in the state court collateral proceeding, the ineffective   160 (6th Cir. 1994). The exhaustion requirement is also
assistance of appellate counsel claim upon which the district        satisfied if it is clear that a claim is procedurally barred under
court relied in granting Caver’s petition and that the claim         state law. Gray v. Netherland, 518 U.S. 152, 161-62 (1996).
was, thus, procedurally defaulted. It is true that before            In such a case, however, the habeas petitioner must overcome
seeking federal habeas corpus relief, a state prisoner must          the procedural default, an independent and adequate state-law
exhaust his available state remedies by fairly presenting all        ground for the conviction and sentence that prevents federal
claims to the state courts. 28 U.S.C. § 2254(b); see Hannah          habeas corpus review, by demonstrating cause and prejudice
v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995). The                   for the default. Id. at 162. This court has previously
exhaustion requirement is satisfied after the petitioner fairly      announced a four part test to determine whether a claim has
presents all claims to the highest court in the state in which       been procedurally defaulted:
the petitioner was convicted, thus giving it a fair and full
opportunity to rule on his claims. See Rust v. Zent, 17 F.3d             First, the court must determine that there is a state
155, 160 (6th Cir. 1994). The petitioner bears the burden of             procedural rule that is applicable to the petitioner's claim
proving that he has exhausted these remedies. See id.                    and that the petitioner failed to comply with the rule....
                                                                         Second, the court must decide whether the state courts
  Caver, however, counters the Attorney General’s                        actually enforced the state procedural sanction. ... Third,
procedural default argument by noting that issues “raised for            the court must decide whether the state procedural
the first time on appeal are not properly before the court.”             forfeiture is an "adequate and independent" state ground
J.C. Wyckoff & Assocs., Inc. v. Standard Fire Ins. Co., 936              on which the state can rely to foreclose review of a
F.2d 1474, 1488 (6th Cir. 1991). A review of the record                  federal constitutional claim.... [Fourth,] the petitioner
shows that Respondent did not raise the issue of default                 must demonstrate under [Wainwright v.] Sykes, [433 U.S.
before the district court, instead attempting to meet the                72 (1977)] that there was "cause" for him not to follow
ineffective assistance of appellate counsel arguments on the             the procedural rule and that he was actually prejudiced
merits of the issue. Accordingly, the Court need not address             by the alleged constitutional error.
Caver’s alleged procedural default because Respondent did
not, in fact, raise the issue in the proceedings before the          Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
district court.
                                                                       M.C.R. 6.508(D)(3) governs the procedures for collateral
                                                                     appeals and denies relief if the defendant alleges claims that
                                                                     could have been raised in the direct appeal from the
No. 01-2649                                       Caver v. Straub           9    10       Caver v. Straub                                   No. 01-2649

conviction. See People v. Jackson, 633 N.W.2d 825 (Mich.                         General’s argument in this regard must fail. Given the less
2001). Specifically, the Attorney General asserts that the                       stringent standards and active interpretation that are afforded
issue of denial of counsel during a “critical stage” of the trial                to the filings of pro se litigants, Urbina v. Thoms, 270 F.3d
was not presented to the state courts.                                           292, 295 (6th Cir. 2001), these aspects of Caver’s application
                                                                                 support a finding that Caver “fairly presented” the trial
  Ultimately, then, the issue is whether Caver fairly presented                  counsel ineffectiveness claim.
the claim to the Michigan courts in his one and only motion
for relief from judgment. Fair presentation of an issue                          C. The District Court Did Not Err in Concluding That
requires that a petitioner give state courts a full opportunity to                  the State Court Unreasonably Applied Clearly
resolve any constitutional issues by invoking “one complete                         Established Federal Law
round” of the state’s appellate review system. O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (finding that “one                              The Attorney General makes two arguments in support of
complete round” includes discretionary appeal to state                           the contention that the district court erred by finding that the
supreme court). Fair presentation also requires that “the same                   state court unreasonably applied clearly established federal
claim under the same theory be presented” for the state                          law. First, the Attorney General maintains that the state court
court’s consideration. Palette v. Foltz, 824 F.2d 494, 497 (6th                  reasonably applied clearly established federal law in
Cir. 1987). Thus, to the extent that an ineffective assistance                   determining that Caver’s appellate counsel did not fall below
of counsel claim is based upon a different allegedly                             the required standard of professional competence. Next, the
ineffective action than the claim presented to the state courts,                 Attorney General asserts that the district court erroneously
the claim has not been fairly presented to the state courts. Id.                 presumed prejudice under United States v. Cronic, 466 U.S.
                                                                                 648 (1984), instead of conducting an individualized inquiry.4
   Certainly, the issue was not raised in his direct appeal to the
Michigan Court of Appeals. He did, however, raise the issue                         As noted above, a habeas petition may issue only if the
in his pro se appeal to the Michigan Supreme Court, asserting                    state court decision is contrary to or an unreasonable
that he had wanted to present an ineffective assistance of trial                 application of clearly established federal law as determined
counsel claim in his intermediate appeal, but that appellate                     by the Supreme Court of the United States. 28 U.S.C.
counsel had denied him that opportunity.3 Thus, the Attorney                     § 2254(d). The phrase “clearly established federal law, as
                                                                                 determined by the Supreme Court of the United States”
                                                                                 “refers to the holdings, as opposed to the dicta” of the
    3
      Even if he had not, we believe that he has demonstrated by virtue of       Supreme Court. Williams v. Taylor, 529 U.S. 362, 412
ineffective assistance of his appellate counsel, as discussed below, “that
there was ‘cause’ for him not to follow the procedural rule and that he was
actually prejudiced by the alleged constitutional error.” Ma upin v. Sm ith,
785 F.2d 135, 138 (6th Cir. 1986) (citing Sykes, 433 U.S. 72 ).                  receipt of the note is sufficient to cover the subsequent events leading up
     For this reaso n, the Court also rejects the Attorney General’s more        to and including jury re-instruction. Urbina v. Thoms, 270 F.3d 292, 295
nuanced argum ent; that is, that C aver in his state co llateral proceedings     (6th C ir. 200 1).
did not state that trial counsel was absent during the actual re-instruction          4
of the jury, only th at counsel was absent when the trial judge received a             In this sense, the Attorney General objects to the district court’s
note from the jury. Looking again to the less stringent standards and            findings respecting both the performance and prejud ice components of
active interpretation that are afforded to the filings of pro se litigants, we   Caver’s ineffective assistance claim. See Strickland v. Wa shing ton, 466
are satisfied that Caver’s reference to trial counsel’s absence during           U.S. 668 (1984).
No. 01-2649                              Caver v. Straub      11    12       Caver v. Straub                                    No. 01-2649

(2000). As the Supreme Court has noted, “[i]t is past               (quoting Barnes, 463 U.S. at 751-752). As the Supreme
question that the rule set forth in Strickland qualifies as         Court has recently observed, it is difficult to demonstrate that
‘clearly established Federal law’” for ineffective assistance of    an appellate attorney has violated the performance prong
counsel claims. Id. at 391. Under the oft-stated Strickland         where the attorney presents one argument on appeal rather
v. Washington test, to prevail on an ineffective assistance of      than another. Smith v. Robbins, 528 U.S. 259, 289 (2002). In
counsel claim, a petitioner must demonstrate that                   such cases, the petitioner must demonstrate that the issue not
(1) “counsel’s representation fell below an objective standard      presented “was clearly stronger than issues that counsel did
of reasonableness,” and (2) “there is a reasonable probability      present.” Id. at 289.
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v.                  In the instant case, there can be little doubt but that the
Washington, 466 U.S. 668, 694 (1984). For Caver to succeed,         omitted issue - trial counsel’s alleged absence during jury re-
however:                                                            instruction - was much stronger than the issues Caver’s
                                                                    appellate counsel presented.5 As Caver notes, the first issue
  [H]e must do more than show that he would have                    presented to the Michigan courts on appeal (whether the court
  satisfied Strickland’s test ..., because under §2254(d)(1),       erred in its aiding and abetting instruction) was subject to
  it is not enough to convince a federal habeas court that,         “plain error” review - a highly deferential standard, to put it
  in its independent judgment, the state-court decision             mildly. Moreover, the second argument presented on direct
  applied Strickland incorrectly. Rather, he must show that         appeal, the sufficiency of the evidence, was dependent upon
  the [state court] applied Strickland to the facts of his case     the success of the first issue. (Absent liability as an
  in an objectively unreasonable manner.                            aider/abettor, there could be no evidence to support a finding
                                                                    of the requisite intent.)
Bell v. Cone, 535 U.S. 685, 698-99 (2002) (citations omitted).
                                                                       In contrast, because re-instruction of the jury is a critical
  1. Strickland’s Performance Component                             stage of a proceeding, see discussion infra Part III.C.2, Caver
                                                                    would have had a far better chance of succeeding on his
   The Supreme Court has made clear that in reviewing a             ineffective assistance claim. Indeed, the largest obstacle to
lawyer’s performance, a court’s “scrutiny . . . must be highly      such a claim would have been the vagueness of the trial
deferential.” Strickland, 466 U.S. at 689. A fair assessment of     record with regard to trial counsel’s presence or absence
attorney performance requires that every effort be made “to         during the actual re-instruction of the jury. See discussion
eliminate the distorting effects of hindsight, to reconstruct the   infra Part III.D. While such second-guessing of appellate
circumstances of counsel's challenged conduct, and to               counsel’s evaluation of the facts may seem like the forbidden
evaluate the conduct from counsel's perspective at the time.”       product of the “distorting effect[] of hindsight,” even
Id.    In relation to appellate counsel, the Strickland
performance standard does not require an attorney to raise
every non-frivolous issue on appeal. See Jones v. Barnes, 463            5
                                                                          This is not surprising, given that some courts have suggested that the
U.S. 745, 751 (1983). Indeed, the process of “‘winnowing out        Strickland performance and prejudice prongs tend to blur when
weaker arguments on appeal and focusing on’ those more              considering the performance of appellate counsel, as the prejudice inquiry
likely to prevail ... is the hallmark of effective appellate        will generally inform whethe r app ellate counsel met the standard of
advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986)                professional competence. See United States v. Cook, 45 F.3d 388, 395
                                                                    (10th Cir. 1995); Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
No. 01-2649                                       Caver v. Straub         13     14    Caver v. Straub                              No. 01-2649

assuming that counsel was absent only for the receipt of the                     standard, we must assess whether this performance prejudiced
jury note the resulting argument would still appear much                         Caver. The question presented here is whether an appellate
stronger than a sufficiency of the evidence claim.6                              counsel prejudices a client where the attorney fails to raise on
                                                                                 appeal a claim that the trial counsel’s representation was per
  2. Strickland’s Prejudice Component                                            se prejudicial because the trial counsel was absent during a
                                                                                 critical stage of the proceedings, namely jury re-instruction.
  Having determined that the representation of Caver’s                           We answer in the affirmative, because but for the appellate
appellate counsel fell below an objectively reasonable                           counsel’s ineffectiveness, there is a reasonable probability
                                                                                 that the result of the state appeal may have been different.

    6                                                                               On the same day that the Supreme Court in Strickland
      The only explanation for appellate counsel’s failure to raise the          outlined the requirements for an ineffective assistance of
ineffective assistance of counsel claim may b e found in the transcript of
the evidentiary hea ring at the district co urt. Petitioner’s counsel broached
                                                                                 counsel claim, it also determined that where counsel is absent
the subject of trial counsel’s presence during the jury re-instruction with      at a critical stage of a criminal proceeding the trial will be
appellate counsel as follows:                                                    deemed unfair and prejudice under Strickland presumed.
                                                                                 United States v. Cronic, 466 U.S. 648, 659 & n.26 (1984).
    Q. ...[C]an you tell us why you d id not raise the denial of the             The Attorney General challenges the district court’s
       right to counsel during the supplemental instruction issue?
                                                                                 conclusion that jury re-instruction is a “critical stage” such
    A. W ell, you have to be more specific.                                      that prejudice is presumed and no individual analysis is
                                                                                 required.
    Q. There came a time when the jury wanted to be instructed on
       certain elements of the offense after they had deliberated.                  A critical stage of a criminal proceeding is “a step of a
                                                                                 criminal proceeding, such as arraignment, that h[olds]
    A. Uh-hum.
                                                                                 significant consequences for the accused.” Bell v. Cone, 535
    Q. And the transcript reflects that Mr. Caver’s attorney was not             U.S. 685, 695-96 (2002). Where counsel is absent or denied
       present during that time period.                                          in such instances, “the likelihood that the verdict is unreliable
                                                                                 is so high that a case-by-case inquiry [of prejudice to the
    A. I don’t see the merit in the issue, I gue ss would be...                  defendant] is unnecessary.” Mickens v. Taylor, 535 U.S. 162,
At that point, Petitioner’s counsel interrupted the response by stating, “I
                                                                                 166 (2002) (citing Cronic, 466 U.S. at 658-59 & 659 n.26).
have no further questions.” The Attorney G enera l, prom pted by the court,      The “individual inquiry into whether counsel's inadequate
stated, “I have no questions for this witness.” Accordingly, we are left to      performance undermined the reliability of the verdict” is
wonder why Petitioner’s appellate counsel did not pursue this claim on           forgone only in such cases. Id.
direct appeal - whether because appellate counsel did not appreciate the
merit of the claim or because he understood that Petitioner’s counsel was          Is jury re-instruction a “critical stage” under Cronic? While
prese nt. Notwithstanding Petitioner’s counsel’s interruption of the
response, the state was left with an opportunity to explore the reasons for
                                                                                 the Supreme Court has not expressly considered whether jury
his failure to pursue the claim, an opportunity which the Attorney General       reinstruction, as it is understood in this matter, is a critical
permitted to slip away. As further discussed infra, at footnote 10, we are       stage, this court recently determined - in a decision squarely
concerned with the state’s failure to take up its residual burden of             on-point and founded on the U.S. Supreme Court’s decision
rebutting that evidence presented on behalf of the petitioner when it was
necessary to do so.
No. 01-2649                                     Caver v. Straub        15     16       Caver v. Straub                                       No. 01-2649

in Cronic - that it is.7 French v. Jones, 332 F.3d 430 (6th Cir.              habeas corpus could be properly granted on this ground.8
2003). On remand from the Supreme Court, which had                            Any conclusion otherwise would be an unreasonable
vacated the original appellate opinion in French and                          application of clearly established federal law as stated in
remanded for reconsideration in light of the Supreme Court’s                  Cronic.
decision in Bell v. Cone, 535 U.S. 685 (2002), this court
reiterated its previous decision holding that jury re-instruction               Because prejudice is presumed and because, as outlined
was indeed a “critical stage” as described in Cronic and that                 above, appellate counsel was ineffective for failing to raise
prejudice could be presumed. French, 332 F.3d at 438-39.                      the absence of trial counsel issue, the district court was
Again, we note that the Supreme Court has "uniformly found                    correct in finding that the state court’s application of
constitutional error without any showing of prejudice when                    Strickland (that is, the state court’s conclusion that appellate
counsel was either totally absent, or prevented from assisting                counsel was not ineffective) was an unreasonable application
the accused during a critical stage of the proceeding."                       of clearly established federal law.
French, 332 F.3d at 436 (quoting United States v. Cronic, 466
U.S. 648, 659 n.25 (1984)). This is to say, under Cronic, that                D. The District Court’s Factual Finding That Caver’s
if Petitioner’s trial counsel was, indeed, absent during the re-                 Trial Attorney Was Absent During Jury Re-
instruction, a structural error occurred in the trial court                      instruction Was Not Clearly Erroneous
proceeding, and either relief from judgment or a writ of
                                                                                The Attorney General challenges not only the district
                                                                              court’s legal conclusions - conclusions which we validate
                                                                              above - but also the district court’s central factual
                                                                              determination standing as the linchpin of Caver’s habeas
                                                                              petition. That determination is the district court’s finding that
                                                                              Caver’s trial counsel was absent during jury re-instruction.
    7                                                                         The record, the Attorney General argues, is devoid of support
      Anticipating concerns about whether or not this properly constitutes
“clearly established Federal law, as determined by the Supreme Court of       for such a finding.
the United States,” we note that the Cronic court has only carved out a
broad rule, a rule that must be applied in the many factually distinct           Our review of the district court’s factual findings is highly
situations that will come before the lower courts. 28 U.S.C. § 2254(d)(1).    deferential. We start from the premise that a district court’s
“[R]ules of law may be sufficiently clear for habeas purposes even when       factual findings in a habeas proceeding are reviewed for clear
they are expressed in terms of a generalized stand ard rather than as a
bright-line rule.” Williams v. Taylor, 529 U.S. 362 , 382 (2000).
Accordingly, such a rule o f law can “tolerate a num ber o f specific
applications without saying that those applications themselves create a            8
new rule....” Id. (quotation omitted). The Supreme Court has rejected a             W e note that the panel in French v. Jones, while holding that jury
requirement that the facts of prior cases be “fundamentally similar” or       re-instruction is a critical stag e and that prejudice may be presum ed if trial
“materially similar” in order to constitute “clearly established law.” Hope   counsel is absent, did not place any limits on what types of jury re-
v. Pelzer, 536 U.S. 730, 741 (2002) (fair warning of unconstitutional         instruction would be considered “critical.” Frenc h v. Jones, 332 F.3d
conduct required where o fficials seek qualified immunity from su it in       430, 438-39 (6th Cir. 2003). As the re-instruction in the instant matter
cases under 42 U.S.C. § 1983). For this reason, we believe that our focus     involved new and supplemental information conveyed to the jury, similar
on the absence per se of trial counsel during jury reinstruction makes this   to that jury re-instruction in French, we express no opinion on whether or
a “tolerable ap plicatio n” of Cronic within the requirements of              not a jury re-instruction that does not convey new and supplemental
§ 2254 (d)(1).                                                                information is sim ilarly a “critical” stage in a trial.
No. 01-2649                                    Caver v. Straub           17   18   Caver v. Straub                              No. 01-2649

error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999).                     that are unclear, trial counsel was not questioned respecting
“‘Clear error’ occurs only when [the panel is] left with the                  his alleged absence during jury re-instruction. Without any
definite and firm conviction that a mistake has been                          testimony on the matter, the district court was left with the
committed. If there are two permissible views of the evidence,                following excerpt of the trial record:
the factfinder's choice between them cannot be clearly
erroneous.” United States v. Kellams, 26 F.3d 646, 648 (6th                     (Back on the record at about 3:59 p.m.)
Cir. 1994). We are also mindful that in a habeas proceeding
the petitioner “has the burden of establishing his right to                     THE COURT: I’m not really certain about this.
federal habeas relief and of proving all facts necessary to
show a constitutional violation.” Romine v. Head, 253 F.3d                      I’m not quite certain about what this note from the jury
1349, 1357 (11th Cir. 2001). Thus, the panel must determine                     means. It says definitions of Assault, and False
whether or not the district court erred in determining that                     Pretenses. And I’m not quite certain, so I’m going to ask
petitioner met the burden of establishing his right to federal                  them if they would be kind enough to write down exactly
habeas relief and of proving all facts necessary to show a                      what is on the verdict form.
constitutional violation on the record presented.
                                                                                (Brief pause.)
  The collateral trial court opinion was the last reasoned
opinion before the district court, and the opinion did not                      THE COURT: Gentlemen, I have written a note.
contain any findings of fact.9 The district court held an                                        Where is Mr. Simon?
evidentiary hearing, in which the petitioner and both trial and
appellate counsel were questioned. The petitioner was not                       [Attorney for Caver’s co-defendant]: I just asked the
asked by his counsel about his claim that his trial attorney                    same question.
was not present when the jury was re-instructed. For reasons
                                                                                THE COURT: Nevertheless, I am writing this note:

    9                                                                           “Dear Jurors, I don’t quite understand your question.
      The entire trial court opinion for the state collateral proceed ing       Would you please mark on the verdict form the exact
reads:
                                                                                charge or charges that you want”.
         Defendant has filed a Motion of Relief from Judgm ent, in
    which he raises several issues that were not raised in his prior            And I’m going to send them a form in there so they can
    app eal. Upon review of the M otion, this Court is satisfied that           write on here exactly what they want to hear.
    the defendant has not shown “go od cau se” for failure to raise
    these issues in his prior appeal, nor actual prejud ice from these           After this exchange, the attorney for Caver’s co-defendant
    alleged errors. MCR 6.50 8(D)(3).
                                                                              stated that he believed that the court should define assault and
         Defendant’s claim o f ineffective a ssistance of appellate           false pretenses, rather than making an inquiry. A note was
    counsel does not satisfy the “good cause” requirem ent because            then sent to the jury at 4:03 p.m. The court reconvened from
    app ellate counsel is not required to raise every non-frivolous           4:06 p.m. to 4:08 p.m. to clarify that the juror requests were
    issue on ap peal. Jones v. Barnes, 463 U.S. 795; 103 S. Ct. 3308;         required to be in writing. From 4:19 p.m. to 4:27 p.m. the
    77 L. Ed. 2d 987 (1983). Defendant’s Mo tion for Relief from
    Judgment is hereby Denied.
                                                                              trial court responded to the jury’s request and re-read the
No. 01-2649                             Caver v. Straub     19    20     Caver v. Straub                                       No. 01-2649

requested instruction. After the jury was excused to              indication that Simon was not present at the re-instruction of
deliberate, Mr. Ernst, counsel for one of Caver’s co-             the jury, such as another inquiry into or an explanation
defendants, objected to the court’s aiding and abetting re-       offered for his absence. This is to say that the record is
instruction, and the court overruled the objection. The trial     susceptible to two permissible interpretations -- either
transcript does not reflect Mr. Simon’s presence in the           Simon’s presence was not remarked upon or his continued
courtroom from the time of the court’s initial question           absence was not remarked upon by those present. Thus, the
“Where is Mr. Simon?” to the conclusion of the proceeding         district court judge could not have committed clear error in
that day at 4:29 p.m.                                             determining that petitioner’s trial counsel was absent, and we
                                                                  must defer to the interpretation adopted by the district court
   The Attorney General argues that the judge’s question,         judge in his decision to grant the request for a writ of habeas
“Where is Mr. Simon?” does not demonstrate that trial             corpus.10
counsel was not present at the subsequent re-instruction, but
merely reflects his absence at the time of the judge’s
statement in response to the jury’s question. The Attorney
General also cites the fact that the court went on and off the         10
record twice after the judge’s question, arguing that “it must            Even though we ha ve de termined that the district jud ge’s
be presumed that the judge would have pursued [counsel’s          determination to grant Petitioner a writ of habeas corpus based on the
                                                                  record was not clearly erroneous, we remark that it would have been
absence] if counsel had remained absent.” Therefore, the          helpful for either counsel or the court to have inquired of Petitioner’s trial
Attorney General maintains, Caver has not met his burden of       counsel regarding his presence or absence at the jury re-instruction during
proof on this point.                                              the evidentiary hearing. Nonetheless, their failure to do so does not mean
                                                                  that the record is therefore devoid of any evidence regarding S imon’s
  We disagree. While we must find clear error where the           presence or absence. Rather, it leaves a suggestive record by which
record is thoroughly devoid of evidence to support a district     Petitioner has borne his burden of proof in the eyes of the district court
                                                                  and as described above. Such a sparse record may be p roperly construed
court’s finding, a district court’s factual finding may survive   in this manner, considering the critical nature of the re-instruction of the
appellate scrutiny where there is some supporting evidence.       jury under Cronic and French and in the absence of further evidence of
Naturally, the trial court judge’s inquiry, “Where is Mr.         Simo n’s presence, particularly in light of the state’s op portunity to elicit
Simon?”, raises the question of the trial attorney’s              testimony from Simon at the evidentiary hearing before the district court.
whereabouts, particularly when coupled with the subsequent        Our determination is bolstered when considered alongside those decisions
                                                                  that impugn the state’s care for a criminal d efendant’s constitutional rights
concern expressed by Caver’s co-defendant’s trial counsel.        where the record is silent regarding the d etails of certain procee dings.
Thus, it can be understood to confirm Simon’s absence from        See, e.g., Boykin v. Alabama, 395 U .S. 238 (1969 ) (reversible error where
the courtroom at the time of the statement. There is no           guilty plea accepted but record does not disclose that a plea was entered
indication that Simon returned to the courtroom in the period     voluntarily and knowingly); Carnley v. Cochran, 369 U.S. 506, 516
of time after the statement was made and before the close of      (1962) (holding that “[p ]resum ing waiver [of the Sixth Amendm ent right
                                                                  to counsel] from a silent record is impermissible. The record must show,
proceedings for the day, including the re-instruction of the      or there must be an allegation and evidence which show, that an accused
jury. This interpretation of the evidence is buttressed by the    was offered counsel but intelligently and understandingly rejected the
fact that Simon neither commented on nor objected to the          offer. Anything less is not waiver.”). This is not to say that we are
proceedings so as to appear in the record in the nearly thirty    shifting the burden to be borne by a habeas petitioner by our decision
minute period following the trial judge’s query about Simon’s     today. Rather, we are concerned about the state’s failure to take up its
                                                                  residual burden of rebutting that evidence presented on behalf of the
whereabouts. Of course, neither is there any further              petitioner when it was necessary to do so.
No. 01-2649                              Caver v. Straub     21    22   Caver v. Straub                              No. 01-2649

                       IV. Conclusion                                                 ___________________
  Caver’s ineffective assistance of appellate counsel claim                             CONCURRENCE
was not procedurally defaulted, and because jury re-                                  ___________________
instruction is a “critical stage” of a criminal proceeding, the
district court properly presumed prejudice under Cronic.             ROGERS, Circuit Judge, concurring.
Further, the district court’s factual finding that Caver’s trial
counsel was absent during jury re-instruction is supported by        I concur in the result, and in the majority opinion to the
the record and, thus, not clearly erroneous. Accordingly, the      extent that it does not preclude a future panel from upholding
decision of the district court is AFFIRMED.                        as reasonable, under the deferential AEDPA standard, a
                                                                   reasoned state court opinion to the effect that a jury
                                                                   reinstruction might not amount to a critical stage under the
                                                                   reasoning of United States v. Cronic, 466 U.S. 648, 659 &
                                                                   n.25 (1984).
                                                                      Several factors make this a poor case in which to preclude
                                                                   such a holding in the future. First, only the most generous
                                                                   accommodation accorded pro se filings permits us even to
                                                                   conclude that petitioner adequately pursued in the state courts
                                                                   the issue of counsel’s absence at jury reinstruction. Second,
                                                                   the state court rejected the argument in the most cursory
                                                                   terms, leaving us with the slimmest of indications of its
                                                                   reasoning on the issue. Third, the district court’s factual
                                                                   finding that counsel was indeed absent at the time of jury
                                                                   reinstruction can be upheld only on the basis of a generous
                                                                   application of deference under the court’s clearly erroneous
                                                                   standard, as the record is remarkably opaque on the question.
                                                                   Fourth, it is not even clear that the state in its brief to this
                                                                   court did not waive any argument that jury reinstruction is a
                                                                   critical stage under Cronic. Given this state of the record, I
                                                                   concur in the majority’s result.
                                                                      This case should not be read, however, to resolve the issue
                                                                   of whether it is ever possible to uphold, under the AEDPA
                                                                   standard, a reasoned state court holding that a defendant was
                                                                   not prejudiced by the absence of counsel at jury reinstruction.
                                                                   French v. Jones, 332 F.3d 430 (6th Cir. 2003), relied upon by
                                                                   the majority, does not necessarily require a negative answer
                                                                   to this question, because the state court decision in that case
No. 01-2649                              Caver v. Straub     23

assumed that the jury reinstruction at issue was a critical
stage. French, 332 F.3d at 436. Our holding in French thus
does not require the conclusion that a state court could not
reasonably (even if erroneously in our view) hold the
contrary. Moreover, Supreme Court cases dealing with jury
reinstruction do not require a negative answer, as those cases
could reasonably be read to state a rule that is not of
constitutional stature. Rogers v. United States, 422 U.S. 35,
39-40 (1975) (analyzing giving of supplemental instructions
to jury when defendant’s counsel was absent as violation of
Rule 43 of Federal Rules of Criminal Procedure); Shields v.
United States, 273 U.S. 583, 588-89 (1927) (observing that
rule of orderly conduct of jury trial entitles defendant to be
present from time jury is impaneled until it renders its
verdict); cf. Rushen v. Spain, 464 U.S. 114, 117 n.2 (1983)
(declining to decide whether trial judge’s ex parte
communication with juror was error of constitutional
dimension). But see Rushen, 464 U.S. at 118 (arguably citing
Rogers as case involving constitutional deprivation).
   To be sure, the Supreme Court has indicated that a “critical
stage” denotes “a step of a criminal proceeding, such as an
arraignment, that h[olds] significant consequences for the
accused.” Bell v.Cone, 535 U.S. 685, 695-96 (2002). If we
assume that responding to a jury request to amplify a jury
instruction inherently “holds significant consequences for the
accused, ” then it would arguably be unreasonable for a state
court to conclude, where the defendant’s attorney was absent
at that time, that the Constitution did not require a new trial.
I would leave resolution of the issue, however, to a case in
which the state court more clearly made such a determination,
and where the state more clearly defended it.
