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

                       _________________                                                         I. BACKGROUND

                             COUNSEL                                        A. Factual background

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

                                   1
No. 02-1586                             Hudson v. Jones          3   4    Hudson v. Jones                             No. 02-1586

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

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

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

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

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

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

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

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