                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 07a0053p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                      X
                              Petitioner-Appellant, -
 JARMAINE CARROLL,
                                                       -
                                                       -
                                                       -
                                                           No. 05-1319
          v.
                                                       ,
                                                        >
 PAUL RENICO, Warden,                                  -
                              Respondent-Appellee. -
                                                      N
                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
                       No. 03-73592—Avern Cohn, District Judge.
                                    Argued: December 8, 2006
                              Decided and Filed: February 2, 2007
                    Before: CLAY, ROGERS, and SUTTON, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Gerhardt A. Gosnell II, CHESTER, WILLCOX & SAXBE, Columbus, Ohio, for
Appellant. Janet A. VanCleve, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for
Appellee. ON BRIEF: Gerhardt A. Gosnell II, Sarah D. Morrison, CHESTER, WILLCOX &
SAXBE, Columbus, Ohio, for Appellant. Janet A. VanCleve, OFFICE OF THE ATTORNEY
GENERAL, Lansing, Michigan, for Appellee.
        ROGERS, J., delivered the opinion of the court, in which SUTTON, J., joined. CLAY, J.
(pp. 7-10 ), delivered a separate opinion concurring in part and dissenting in part.
                                       _________________
                                           OPINION
                                       _________________
        ROGERS, Circuit Judge. We affirm the district court’s denial of Jarmaine Carroll’s habeas
petition because the Michigan state courts did not unreasonably apply United States Supreme Court
precedent in holding (1) that the state trial court adequately dealt with an incident of improper jury
contact, and (2) that counsel for co-defendant could “stand in” for defendant’s counsel during
reinstruction of the jury without violating defendant’s Sixth Amendment rights.
      On November 7, 1997, Elisia Brockington and two masked, armed intruders shot Samir
Dawood in the leg during a robbery of the Eagle Market. Brockington, who admitted to being an
accomplice in the crime, described to the police Carroll’s involvement in the robbery. The State of
Michigan subsequently charged Carroll with several crimes, including armed robbery, assault with

                                                  1
No. 05-1319                    Carroll v. Renico                                                               Page 2


intent to commit murder, and conspiracy to commit armed robbery. He stood trial with co-
defendants William and Michael Thompkins.
        On Thursday, May 6, 1999, the jury began deliberating the fate of Carroll and William
Thompkins. (Michael Thompkins elected to have the trial judge decide his fate.) Two events
pertaining to the jury’s deliberations are significant to this appeal. First, on the second day of
deliberations, the jury requested that the trial judge reinstruct the jury on certain definitions and
elements of the crimes. Carroll’s attorney, Richard Powers, who was absent during the start of the
reinstructions, entered the courtroom towards the end of the trial court’s response to the jury’s
request. At the end of the reinstruction, which was lengthier than the original instructions and
included several examples, counsel for co-defendant, Regina D. Jemison, objected on behalf of co-
defendant and Carroll. The trial judge overruled the objection and acknowledged that counsel for
co-defendant “stood in” for Carroll’s attorney, noting, “She did more than stood in, she stood up.”
         The second relevant event occurred on Tuesday, May 11, 1999, when the trial court received
a note from the jury that family members of one of the defendants harassed two jurors. Juror
number 10 stated that, as she was waiting outside for someone to pick her up, a man walked past her
and said he was going to “jack her.” The man then walked to a car, and looked back at the juror.
This prompted her to reenter the building to wait for her ride. Juror number 11, meanwhile, stated
that a female asked her for her name. Having heard these two jurors’ stories, the trial judge assured
the jury that deputies would protect them.
         An hour later, the jury convicted Carroll of conspiracy to commit armed robbery, and the
trial judge asked the two jurors whether earlier events affected the verdict. Both jurors said that the
earlier events did not affect their decisions as to defendants’ guilt. Carroll’s counsel did not ask for
a more detailed investigation or propose a different procedure to investigate the incidents. The judge
later sentenced Carroll to fifteen to thirty years. Defense counsel moved for a mistrial because of
the contact with the jurors, which the state trial court rejected.
        In an unpublished opinion, the Michigan Court of Appeals affirmed Carroll’s conviction,
People v. Carroll, No. 220556, and the Michigan Supreme Court subsequently denied Carroll leave
to appeal. 646 N.W.2d 471 (2002). As to Carroll’s argument that the trial judge should have
granted a mistrial because of jury tampering, the Court of Appeals noted that “the two jurors were
not biased against” Carroll. As to Carroll’s right-to-counsel argument, the Michigan Court of
Appeals noted that co-defendant’s counsel, who objected to the conspiracy instructions on behalf
of both defendants, “stood in” for Carroll’s counsel during the reinstruction.
         Carroll filed a petition for habeas relief, which the federal district court denied on October
18, 2004. The federal district court noted that, on the issue of investigating jury tampering, “the
preferred course of action would have been to question the jurors individually regarding whether
their impartiality was impacted by contact with the unknown persons rather than questioning the
jurors together.” Nevertheless, the court held that “it cannot be said that the state court’s conclusion
was contrary to or an unreasonable application of Supreme Court precedent.” As to Carroll’s denial
of the right to counsel, the court noted that, while “it would have been prudent for the trial court to
state on the record prior to reinstructing the jury that [counsel for co-defendant] was temporarily
representing” Carroll, “the state court’s determination that [Carroll] was represented by counsel
during reinstruction was not an unreasonable determination of the 1facts in light of the evidence, nor
was it an unreasonable application of Supreme Court precedent.”

         1
           The Michigan Court of Appeals and the federal district court also rejected Carroll’s arguments that the trial
court violated Carroll’s right to a fair trial and due process when the jury saw him wearing handcuffs, and that the
prosecutor committed misconduct by vouching for the credibility of a witness. The district court did not appear to rule
on Carroll’s sentencing argument, which Carroll raised before the Michigan courts and (tangentially) before the federal
No. 05-1319                     Carroll v. Renico                                                                    Page 3


        The district court properly denied Carroll’s petition for habeas relief because the Michigan
courts’ decisions did not involve an unreasonable application of clearly established Supreme Court
precedent or result from an unreasonable determination of facts. A federal court may grant a writ
of habeas corpus on behalf of a person in state custody only if the judgment of the state: “(1) resulted
in a decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2).
I.       The Michigan Court Did Not Unreasonably Apply Federal Law In Holding That The
         Trial Court Adequately Investigated Allegations Of Improper Contact With Jurors.
        Carroll’s argument that the trial court failed to investigate allegations of improper contact
with jurors suffers from two serious flaws. First, the record simply does not support Carroll’s
description of events, namely that the trial court “prohibited counsel for [Carroll] to participate in
the investigation” and “ignored the request of [Carroll’s] trial counsel to inquire of the jury after they
rendered the verdict.” Instead, the record demonstrates that the trial court took the lead in
investigating the claims and did not prevent Carroll’s counsel from asking for a more in-depth
investigation.
        The relevant section of the record begins after the jury returned a guilty verdict. At that
point, the trial court asked counsel, “Do you want a polling?” to which counsel answered, “Can we
inquire?” presumably as to any alleged bias resulting from the statements to jurors. In response to
counsel’s request, the trial court initiated an inquiry, asking both jurors whether the statements had
any impact on their deliberations. The two jurors answered in the negative.2 The judge then asked,
“Do you want a polling?” to which counsel answered, “Yes.” The trial court then polled the jury.
        It is significant that counsel never asked the trial court to conduct any further investigation
or to question the jurors individually in closed chambers. See White v. Smith, 984 F.2d 163, 166 (6th
Cir. 1993) (observing that counsel did not request a hearing for the purpose of assessing the impact
of statements that the jury heard); United States v. Walker, 160 F.3d 1078, 1084 (6th Cir. 1998)
(same for impact of juror riding in elevator with co-defendant). Carroll is simply incorrect in stating
that the trial court prohibited anyone from participating in the investigation or ignored anyone’s
requests because counsel did not make any requests.
       Second, Carroll’s argument falters because precedent from the United States Supreme Court
does not require more than what the trial court did in this circumstance. The two principal cases
upon which Carroll relies, Remmer v. United States, 347 U.S. 227 (1954), and Smith v. Phillips, 455
U.S. 209 (1981), do not support his argument that the trial court failed in its obligations.
       In Remmer, an unknown person tried to induce the jury to find the defendant not guilty by
attempting to bribe a juror. 347 U.S. at 228. After the juror informed the court of the bribe offer,
the FBI interviewed jurors. Neither the judge nor the prosecutor, however, informed the defendant


district court. Carroll does not raise the sentencing issue on appeal. On February 7, 2005, the federal district court
denied Carroll’s Motion for Reconsideration and his Request for a Certificate of Appealability. On October 25, 2005,
this court granted Carroll a certificate of appealability as to the two issues that he raises on appeal.
         2
           It is not unusual for judges to take an active role in investigating. See, e.g., United States v. Sturman, 951 F.2d
1466, 1478 (6th Cir. 1991) (judge asked whether an incident would affect jurors’ ability to remain fair and impartial);
United States v. Pennell, 737 F.2d 521, 529 (6th Cir. 1984) (describing a thorough investigation by the trial court). As
to Carroll’s suggestion that it was improper to ask jurors questions in open court, appeals courts afford trial courts
discretion to determine the scope of proceedings necessary to determine juror bias. See United States v. Griffith, 17 F.3d
865, 881 (6th Cir. 1994).
No. 05-1319                     Carroll v. Renico                                                                   Page 4


of the incident. Id. On appeal following a conviction, the United States Supreme Court ordered the
district court to conduct a hearing to determine whether the incident harmed the defendant, and, if
so, to hold a new trial. Id. at 230; see also United States v. Herndon, 156 F.3d 629, 637 (6th Cir.
1998) (holding that to fulfill its Remmer obligations, a trial court must investigate claims of juror
misconduct and not just permit defense counsel to make a record for the purposes of appeal). This
case stands in stark contrast with Remmer since the state trial court did, in fact, engage in an
investigation of allegations of bias during which the jurors said that they could serve in a fair and
impartial manner. See Zuern v. Tate, 336 F.3d 478, 486 (6th Cir. 2003).
        Smith, similarly, does not support Carroll’s position. In Smith, a juror in a state murder trial
applied for a “major felony investigator” position at the district attorney’s office. 455 U.S. at 212.
After the jury convicted the defendant, the state trial court held a hearing during which the juror
“explained that he had seen nothing improper in submitting the application during the trial.” Id. at
212-13. After hearing this evidence, the state trial court held that there was no prejudice against the
defendant on the part of the juror, 455 U.S. at 213, and the United States Supreme Court refused to
disturb the state court’s finding. Id. at 218. As in Smith, the trial judge in this case investigated
allegations of bias, and, as in Smith, Carroll offers no justifications (beyond calling the state
proceedings   “superficial and wholly inadequate”) for overturning the findings of the state courts.
Id.3
         Thus, while the trial court might have done more to investigate the claims of jury tampering,
there is nothing in Remmer or Smith that required the trial court to do so. For this reason, Carroll’s
claim is without merit because the state courts did not engage in an unreasonable application of
federal law.
II.      Michigan Courts Reasonably Determined That The Trial Court Did Not Deny Carroll
         The Right To Counsel By Allowing Counsel For Co-Defendant To “Stand In” For
         Carroll’s Counsel.
         The state courts, similarly, did not engage in an unreasonable application of clearly
established federal law, as determined by the United States Supreme Court, when they rejected
Carrrol’s argument that he was denied counsel during jury reinstruction. Clearly, Carroll had a right
to counsel when the trial court reinstructed the jury. See Strickland v. Washington, 466 U.S. 668,
686 (1984) (right to counsel); United States v. Cronic, 466 U.S. 648, 659 (1984) (right to counsel
at critical stage of trial); French v. Jones, 332 F.3d 430, 436 (6th Cir. 2003) (critical stage includes
giving of supplemental jury instructions). The only question that remains is whether the Michigan
state courts unreasonably applied United States Supreme Court precedent when they determined that
Carroll was, in fact, represented by counsel when counsel for co-defendant “stood in” for a portion




         3
           Carroll refers to a series of Sixth Circuit decisions to suggest that state courts must engage in a more extensive
Remmer review. Our inquiry here, however, focuses on United States Supreme Court precedent and none of these Sixth
Circuit cases that Carroll refers to suggest that the Michigan courts’ interpretation of United States Supreme Court
precedent was unreasonable. Thus, while this Circuit in direct appeals may require more stringent procedures, United
States Supreme Court precedent guides our review of state habeas petitions.
No. 05-1319                     Carroll v. Renico                                                                     Page 5


of the jury reinstructions.4 Because the Michigan courts did not unreasonably apply Supreme Court
precedent, we affirm the district court’s denial of habeas relief.
        The Michigan Court of Appeals distinguished the facts before it from a case in which counsel
for co-defendant did not “stand in” during the jury reinstructions. The court noted that
         the record reveals that defendant was not denied his right to counsel during the
         reinstruction. Defense counsel thanked codefendant William Thompkin’s attorney
         for standing in for him during the reinstruction, and Thompkin’s attorney objected
         to the conspiracy instruction on behalf of both defendant and Thompkins. In
         addition, the trial court acknowledged that Thompkin’s attorney “stood in” for
         defense counsel during the reinstruction. Therefore, because defendant was
         represented by counsel during the reinstruction, he was not deprived of his Sixth
         Amendment right to counsel.
         The Michigan court’s solution to the problem of having counsel for co-defendant “stand in”
for counsel is not the ideal solution, nor consistent with this court’s precedent regarding what federal
courts must do. See Olden v. United States, 224 F.3d 561, 568-69 (6th Cir. 2000). The preferred
solution to such problems is to generate ex ante approval by having the trial court ask the defendant
whose counsel is not present whether he or she consents to having counsel for co-defendant stand
in, and insuring that the consent is informed. See United States v. Patterson, 215 F.3d 776, 784-85
(7th Cir. 2000).
        The Supreme Court, however, has not required this court’s solution in Olden. The cases
upon which Carroll relies, Johnson v. Zerbst, 304 U.S. 458 (1938), Brewer v. Williams, 430 U.S. 387
(1977), and United States v. Cronic, 466 U.S. 648 (1984), did not reach the issue of co-defendant’s
counsel “standing in” during a critical phase of the trial, a common practice in extended multi-
defendant trials. See United States v. Jackson, 207 F.3d 910, 918-19 (7th Cir. 2000); Patterson, 215
F.3d at 783-86. In Johnson, for example, the Supreme Court dealt with a situation in which
defendants were tried, convicted, and sentenced without assistance of counsel. 304 U.S. at 460.
The Court held, “[i]f the accused, however, is not represented by counsel and has not competently
and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar
to a valid conviction and sentence depriving him of his life or liberty.” Id. at 468. The Court,
however, did not discuss whether a “stand in” counsel constituted counsel for the purposes of this
test. In Brewer, the Court determined whether a defendant waived the right to counsel when the
police intentionally interrogated the defendant after adversary proceedings had commenced, and the
Court did not reach the issue of whether a co-counsel briefly “standing in” deprived a defendant of
his rights. 430 U.S. at 404-05. The issue instead was whether defendant waived his right under
Massiah v. United States, 377 U.S. 201 (1964), not to be interrogated without a lawyer present,
when defendant responded to a “Christian burial” ploy by investigating police. Finally, in Cronic,
the Supreme Court held that there was no constitutional violation when an inexperienced attorney
represented a defendant, but noted that the court has “uniformly found constitutional error without
any showing of prejudice when counsel was either totally absent, or prevented from assisting the
accused during a critical stage of the proceedings.” 466 U.S. at 659 n.25. The Supreme Court did

         4
            The parties dispute the appropriate standard of review. The state argues that state trial courts made a factual
determination that counsel did, in fact, represent Carroll, and that deference to this factual finding is appropriate. Carroll,
on the other hand, argues that deference is not appropriate because the state courts made a legal determination that the
facts, as they existed in the record, do not show a violation of Carroll’s constitutional right to counsel. “The question
of whether the trial judge deprived [a defendant in a state criminal trial] of his right to counsel during the supplemental
jury instruction is a mixed question of law and fact.” French v. Jones, 332 F.3d 430, 435 (6th Cir. 2003). The court
defers to any factual findings that the state courts made (e.g., that counsel arrived at the end of the proceedings) but
overturns state courts’ legal conclusions (e.g., that the trial court did not deprive defendant of the right to counsel) only
if the state courts unreasonably applied United States Supreme Court precedent.
No. 05-1319              Carroll v. Renico                                                      Page 6


not address whether “stand in” counsel solves the problem of an absent counsel. Because no United
States Supreme Court precedent deals with the issue of “stand in” counsel, the Michigan Courts did
not engage in an unreasonable application of Supreme Court precedent when they determined that
Carroll was not denied assistance of counsel at the jury reinstruction phase.
       For these reasons, we affirm the district court’s denial of Carroll’s habeas petition.
No. 05-1319                Carroll v. Renico                                                      Page 7


                ______________________________________________________
                     CONCURRING IN PART, DISSENTING IN PART
                ______________________________________________________
         CLAY, Circuit Judge, concurring in part and dissenting in part. While I concur in Part I of
the majority’s opinion, which concludes that Petitioner suffered no constitutional violation of his
right to an impartial jury, I dissent from the majority’s evident error in Part II of the majority opinion
in approving the continuation of the trial proceedings in the absence of Petitioner’s counsel.
         Contrary to clear Supreme Court precedent and with absolutely nothing in the record
justifying such a holding, the majority by its ruling in this case makes a mockery of perhaps the most
fundamental of all rights of the accused. Petitioner’s Sixth Amendment right to counsel was clearly
violated by his counsel’s unexplained absence during the jury reinstruction. There is absolutely no
indication anywhere on the record that Petitioner was aware that his counsel would be absent from
the trial or that Petitioner consented to the co-defendant’s counsel “standing in” for his own counsel;
therefore, it defies logic to conclude that Petitioner knowingly or intelligently waived his right to
be represented by his counsel. Where a record is completely silent as to the circumstances of one
defense counsel “standing in” as counsel for another defendant, there is also no indication on the
record regarding whether the two defendants have competing or conflicting interests, claims, or
defenses; this is a problem which is simply not addressed by the majority opinion.
        In the present case, the jury requested to be reinstructed on the elements of conspiracy, one
of the crimes with which Petitioner had been charged. With no on-the-record acknowledgment that
Petitioner’s counsel was not present, the court began the reinstruction. In explaining the crime of
conspiracy, the court gave an example of how conspiracy worked and, in the process, incorporated
the prosecution’s theory of the case into its example. Petitioner’s counsel was not present to witness
or object to the content or method of the instruction. The counsel for the co-defendant stood up and
objected on behalf of her own client, and then, purportedly, on behalf of Petitioner. The objection
was overruled. Petitioner’s actual counsel then entered the courtroom and for the very first time
anywhere on the record, there is an acknowledgment that he had been absent.
        Petitioner’s counsel apologized to the court for his absence and thanked the co-defendant’s
counsel for “standing in.” Petitioner, however, was not addressed at all by his counsel or by the
court concerning Petitioner’s knowledge of his counsel’s absence or his consent to proceed in the
absence of his counsel. There is a deafening silence on the record as to whether Petitioner was ever
informed of his Sixth Amendment right to counsel, his counsel’s anticipated absence from the
proceedings, or that he would be represented by another defendant’s counsel. However, with
virtually no information available to it in order to assess whether Petitioner’s rights were violated,
the majority blithely proceeds to hold that Petitioner’s Sixth Amendment right to counsel was not
abridged.
                                                    I.
        The majority opinion inappropriately narrows the issue in this case to whether the Supreme
Court has ever expressly held that the interjection of another defendant’s counsel as replacement
counsel–even if not consented to–amounts to a violation of Petitioner’s Sixth Amendment rights.
The majority claims that none of the cases Petitioner cites benefit him because none of them address
the issue of replacement counsel, which the majority insists on innocuously referring to as “stand-in”
counsel. To underline this point, the majority spends significant energy distinguishing the cases
cited by Petitioner on factual grounds. However, a Supreme Court case need not be precisely
factually identical to the instant case in order to be instructive with respect to the legal principles at
issue. Harris v. Stovall, 212 F.3d 940, 945 (6th Cir. 2000). The cases Petitioner cites are relevant
No. 05-1319                Carroll v. Renico                                                     Page 8


because they stand for the very propositions of law that are at stake in this case. While the Court
has never expressly addressed the issue of replacement counsel, where there is no indication on the
record that the defendant has consented to the replacement, it has been established that, as a
threshold matter, counsel’s absence during a critical stage of a trial constitutes reversible error.
United States v. Cronic, 466 U.S. 648, 659 (1984). Further, the Court has explicitly stated that “[i]t
is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded
a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53 (1932).
See also United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2561 (2006); Wheat v. United States, 486
U.S. 153, 159 (1988). Finally, the Court has held that for any abridgment of this right to be
permissible, a defendant must “intelligently” and “knowingly” waive the right to counsel, and the
burden falls wholly to the government to “prove an intentional relinquishment or abandonment” of
the right. Johnson v. Zerbst, 304 U.S. 458, 464 (1938), overruled in part on other grounds by
Edwards v. Arizona, 451 U.S. 477 (1981). Taken together, these cases provide the very framework
of Petitioner’s legal argument, which is that because Petitioner had a right to counsel at the jury
reinstruction phase of his trial, the Sixth Amendment clearly required an on-the-record showing that
Petitioner was aware of and knowingly consented to any substitution of his counsel. Where such
a showing is absent, as it was in the instant case, this Court cannot, consistent with Supreme Court
precedent, relieve the government of its burden of proving waiver of this clearly established right.
         Thus, while there is no Supreme Court case which expressly provides that a court may not
substitute a defendant’s counsel without the defendant’s consent and even the defendant’s
knowledge, the logical extension of the Supreme Court’s past holdings clearly indicate that this
practice implicates a defendant’s Sixth Amendment rights and require an intelligent and knowing
waiver of those rights. Powell, 287 U.S. at 53; Johnson, 304 U.S. at 464. The Supreme Court has
made it abundantly clear that “a state-court decision . . . involves an unreasonable application of this
Court’s precedent if the state court . . . unreasonably refuses to extend that principle to a new context
where it should apply.” Williams v. Taylor, 529 U.S. 362, 412 (2000). The majority’s dismissal of
instructive Supreme Court cases on the grounds of inconsequential factual distinctions is improper,
and its focus on a supposed lack of precedent on the precise issue of replacing a defendant’s counsel
without the defendant’s knowledge or consent is entirely misplaced.
                                                   II.
         While the Supreme Court has thus far not issued a ruling on the exact issue before this Court,
we have been confronted with this issue and have come to a conclusion contrary to the one put forth
by the panel majority. In fact, the majority opinion admits that the state court’s holding was neither
the “ideal solution, nor consistent with this court’s precedent of what federal courts must do.” Thus,
it is undisputed that this Court considers the practice of having a co-defendant’s counsel take over
for an absent attorney, at least in the federal system, to require an on-the-record showing that the
defendant “knowingly and intelligently waive[] his [or her] Sixth Amendment right to counsel,” in
order to be constitutionally permissible. Olden v. United States, 224 F.3d 561, 568, 569 (6th Cir.
2000). In Olden, this Court was confronted with a case where the defendant’s counsel, Mr.
Wittenberg, anticipated two absences from trial. Id. at 568-69. Mr. Wittenberg notified the court
and the exchange proceeded as follows:
        Mr. Wittenberg:         My client has no objections to having Timothy Barkovic [co-
                                defendant’s counsel] in my absence take notes or whatever.
                                And I would just like to place it on the record at [sic] my
                                client acknowledge that.
        The Court:              Mr. Olden, is that agreeable with you?
        Defendant Olden:        Yes.
        The Court:              All right. Mr. Barkovic, is that agreeable with you?
        Mr. Barkovic:           Absolutely, your Honor.
No. 05-1319               Carroll v. Renico                                                    Page 9


       The Court:              Okay, fine.
Id. at 569. For the second absence, the following exchange occurred:
       Mr. Barkovic:           Mr. Wittenberg has called and asked that I again stand in for
                               Mr. Olden. I’ve discussed it with Mr. Olden. [To Olden] You
                               don’t have any objection to me standing in place and stead of
                               Mr. Wittenberg today?
        Defendant Olden:       No.
        Mr. Barkovic:          Very good. Thank you.
        The Court:             Okay. Thanks.
Id.
         In that case, we noted that in Cronic, the Supreme Court held that a counsel’s absence from
a critical stage of trial was per se prejudice, which could be overcome only by a showing that the
defendant “knowingly and intelligently accepted substitute counsel and thereby waived his right to
have his own counsel present.” Id. We held that it was not clear, however, “whether Olden had any
knowledge as to his Sixth Amendment rights, his right to have his own counsel, his right to reject
the substitute counsel of his co-defendants, or his right to request a continuance until his own
counsel could be present.” Id. Thus, Olden stands for the proposition that the constitutional
guarantee the Supreme Court envisioned in Cronic may not be waived absent an extensive colloquy
that makes clear to this Court that the defendant accepted substitute counsel and was aware of all
other options available when he or she did so. See id. Thus, our holding in Olden is entirely
relevant to the present case and we are bound by our own previous interpretation of Supreme Court
precedent.
         In the instant case, not only did the state court not engage in a colloquy that would come
even close to the standard set by Olden, but the record is wholly silent with respect to whether
Petitioner was even aware that his counsel would be absent and that he would be represented by a
co-defendant’s counsel. In fact, during oral argument, when confronted with the fact that there is
no proof on the record that Petitioner was ever informed of his counsel’s absence, counsel for the
government made the unfathomable argument that this Court should assume consent to substitute
counsel where the record is silent about the matter. The majority’s conclusion seems to implicitly
adopt this reasoning, which renders the Supreme Court holding in Cronic meaningless. According
to the Supreme Court, counsel’s absence during a critical stage of the trial is per se prejudicial,
which can be overcome only by the government bearing the burden of demonstrating that the right
was waived. Cronic, 466 U.S. at 659. However, the majority opinion effectively shifts the burden
to Petitioner to prove that such an absence was not consented to. Thus, the majority opinion creates
a presumption that counsel’s absence from a critical stage of a trial was consented to unless there
appears proof on the record to the contrary. It matters not to the majority that the record is silent
and offers no guidance whatsoever. Such a presumption is wholly at odds with clear Supreme Court
precedent. Id.
        While the majority opinion acknowledges that Olden compels a different result, it
inexplicably holds that such an inconsistency does not amount to an unreasonable application of
Supreme Court precedent. According to the majority opinion, because the Supreme Court has not
explicitly addressed the issue of whether substitute or replacement counsel solves the problem of
proceeding with a trial in a defendant’s counsel’s absence, doing so cannot constitute an
unreasonable application of Supreme Court precedent. The majority seemingly maintains this
position notwithstanding the potential problems arising from the fact that a co-defendant’s counsel
may represent a person whose defense or trial strategy may conflict with that of the defendant whose
counsel has absented himself from the trial proceedings.
No. 05-1319               Carroll v. Renico                                                   Page 10


        The majority’s understanding of AEDPA is not in keeping with our past analyses of the
statute. Again, Petitioner need not be able to point to a Supreme Court case directly on point in
order to be successful on a habeas petition under AEDPA. Where we have previously interpreted
Supreme Court case law and held that a certain right or principle has been clearly established, the
law of this Circuit should be considered. Specifically, we have held that
       [a]lthough only Supreme Court case law is relevant under the AEDPA in examining
       what Federal law is ‘clearly established,’ the decisions of the United States Courts
       of Appeals may be informative to the extent we have already reviewed and
       interpreted the relevant Supreme Court case law to determine whether a legal
       principle or right had been clearly established by the Supreme Court.
Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003). It is irrelevant to this reasoning that Olden does
not arise under AEDPA because this Court need not limit itself to AEDPA cases to determine
whether a legal principle is “clearly established” federal law. See e.g., Mason v. Mitchell, 320 F.3d
604, 634 (6th Cir. 2003) (applying a pre-AEDPA case in a post-AEDPA setting and concluding that
the pre-AEDPA case is nonetheless instructive). Particularly, because Olden involved an
interpretation of the Supreme Court holding in Cronic, its applicability is not limited to the direct
appeal context and remains instructive to the extent that it elucidates legal principles that have been
clearly established by the Supreme Court. In other words, where we have previously interpreted
Supreme Court case law to encompass a legal principle or right, the law of this Circuit is relevant
for habeas review under AEDPA. Id.
        The Sixth Amendment cannot survive where this Court inexplicably interprets a record
completely devoid of any proof of an intelligent and knowing waiver of the right to counsel to
constitute proof that such a waiver must have occurred. Therefore, I respectfully dissent from Part
II of the majority opinion.
