                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 06-35021
                Plaintiff-Appellee,           D.C. Nos.
               v.                        CV-04-00162-DWM
JUSTIN METUCHEN GAMBA,                    CR-01-00068-DWM
             Defendant-Appellant.
                                             OPINION

       Appeal from the United States District Court
               for the District of Montana
       Donald W. Molloy, District Judge, Presiding

                Argued and Submitted
          November 17, 2006—Portland, Oregon

                   Filed April 11, 2007

    Before: Alfred T. Goodwin, Raymond C. Fisher, and
            Milan D. Smith, Jr., Circuit Judges.

          Opinion by Judge Milan D. Smith, Jr.;
                 Dissent by Judge Fisher




                           4085
4088                 UNITED STATES v. GAMBA
                           COUNSEL

Daniel R. Wilson, Measure, Robbin & Wilson, P.C., Kalis-
pell, Montana, for the defendant-appellant.

Joshua S. Van de Wetering, Assistant United States Attorney,
Missoula, Montana, for the plaintiff-appellee.


                            OPINION

MILAN D. SMITH, JR., Circuit Judge:

   Justin Metuchen Gamba was convicted and sentenced for
witness tampering in violation of 18 U.S.C. § 1512(b). Gamba
appeals the district court’s denial of his petition for relief filed
under 28 U.S.C. § 2255. Specifically, Gamba argues that the
district court erred in denying his § 2255 motion because it
did not find Gamba’s appellate counsel ineffective when he
failed to challenge on appeal the magistrate judge’s jurisdic-
tion to preside over closing argument without Gamba’s per-
sonal consent. We affirm because the magistrate judge had
proper jurisdiction over closing argument at Gamba’s trial.
Defense counsel may waive a defendant’s right to have an
Article III judge conduct closing argument where the decision
is one of trial tactics or strategy.

          FACTS AND PROCEDURAL HISTORY

   Gamba was charged with two counts of making false state-
ments in violation of 18 U.S.C. § 1001, two counts of witness
tampering in violation of 18 U.S.C. § 1812(b), and one count
of being an accessory after the fact in violation of 18 U.S.C.
§ 3. All of Gamba’s charges arose from his attempts to foil
the prosecution of his girlfriend on drug and gun charges. He
pleaded not guilty to all charges and the case was set for jury
trial. Gamba retained attorney Ed Sheehy to represent him at
trial.
                   UNITED STATES v. GAMBA                      4089
   Gamba’s trial lasted one day. After testimony concluded,
Sheehy, without Gamba being present, and the Assistant
United States Attorney, Joshua Van de Wetering, convened in
the district court judge’s chambers to finalize jury instruc-
tions. After the instructions were finalized, Chief District
Judge Molloy informed the parties that he had to pick his wife
up from the hospital and suggested that the trial reconvene
after he returned. The relevant portion of the trial transcript
reads as follows:

    THE COURT:        Let me tell you what the problem
                      is that I’ve got. I’ve got to pick my
                      wife up at the hospital at 2:30 and
                      run her home and then come back
                      here. So what I’d like to do, if at
                      all possible—and—shoot, it will
                      be—2:30, make sure you’re here at
                      2:30, because that’s when it will
                      be. And it just may delay me a lit-
                      tle bit. Do you have any objection?

                      One thing that I could do is have
                      Judge Erickson sit in on the argu-
                      ment and submit the case to the
                      jury. I mean, I can instruct the jury,
                      but then he would just preside and
                      give it to the jury.

    MR. SHEEHY: Yeah, I have no objection to that.

    THE COURT:        I’ll leave it up to you guys and I
                      won’t force you, I just have to —

    MR. SHEEHY: I understand.

    THE COURT:        If they did things the way I try and
                      run things, I could go over, pick
                      her up and be back in half hour.
4090              UNITED STATES v. GAMBA
    MR. SHEEHY: I understand what you’re talking
                about; I have no problem doing
                that.

    MR. VAN de WETERING:
                I think that’s a great idea.

(Whereupon, the Court picked up the phone and had tele-
phone conversation with Magistrate Judge Erickson’s assis-
tant.)

    THE COURT:       So is that all right with you guys?

    MR. SHEEHY: Yeah.

    THE COURT:       Is that all right with the defendant?

    MR. SHEEHY: Yeah, he won’t care.

    THE COURT:       So here’s what we’re going to do
                     . . . . I’ll go in, instruct the jury,
                     you get on your opening, you on
                     yours and, hopefully, we can get it
                     done. But if we’re running out of
                     time at 2:30, I’ll take a break and
                     then ask Judge Erickson to come in
                     and just sit there for the balance of
                     the argument and submit the
                     instructions and Mary will swear
                     in the bailiff and then send them
                     off.

   Shortly thereafter, the trial reconvened in the courtroom
with Gamba and the jury present. Judge Molloy addressed the
jury:

    THE COURT:       I am going to have to leave at 2:30
                     because my wife had a medical
                    UNITED STATES v. GAMBA                   4091
                       procedure and I have to pick her
                       up. So Judge Erickson, who is the
                       magistrate judge, will come in and
                       preside over the arguments of
                       counsel in this case. They’ll start
                       while I’m here, but we may take a
                       real short break so that I can step
                       off and he can come in. The parties
                       have consented to that.

(Emphasis added). Neither Gamba nor his counsel raised any
objection to Judge’s Molloy’s announcement.

   Judge Molloy exited the courtroom after instructing the
jury and after counsel for the government had begun his clos-
ing argument. Magistrate Judge Erickson took the bench. Nei-
ther Gamba nor his counsel objected to the presence of
Magistrate Judge Erickson, who made no comments or rul-
ings during the time he presided over the closing arguments.
At the conclusion of closing argument, Magistrate Judge
Erickson submitted the case to the jury. The jury found
Gamba guilty of witness tampering in violation of 18 U.S.C.
§ 1812(b) and Gamba was later sentenced to thirty-three
months imprisonment. Gamba did not object to the magistrate
judge’s presiding over closing argument after the jury handed
down its verdict or when he was sentenced by the district
court.

   Gamba’s petition for relief under 28 U.S.C. § 2255 comes
after this court denied his first appeal for insufficiency of evi-
dence. See United States v. Gamba, 76 F. App’x. 209 (9th Cir.
2003). The district court denied Gamba’s § 2255 motion on
the grounds that Gamba’s counsel did not render ineffective
counsel by consenting to the magistrate judge presiding over
closing argument or by failing to raise the magistrate judge
consent issue on appeal, but granted Gamba a certificate of
appealability on the magistrate jurisdiction issue pursuant to
28 U.S.C. § 2253(c).
4092                   UNITED STATES v. GAMBA
                           JURISDICTION

  We have jurisdiction pursuant to 28 U.S.C. §§ 2253 and
2255.

                    STANDARD OF REVIEW

   Whether the district court’s delegation of authority to a
magistrate judge to preside over closing argument is proper
under the Federal Magistrates Act is a question of law subject
to de novo review. United States v. Colacurcio, 84 F.3d 326,
328 (9th Cir. 1996). The district court’s denial of a 28 U.S.C.
§ 2255 motion is also subject to de novo review. United States
v. Ware, 416 F.3d 1118, 1120 (9th Cir. 2005).

                            DISCUSSION

   [1] The issue before us is one of first impression in this cir-
cuit. Specifically, we address whether a district court judge
may lawfully appoint a magistrate judge to preside over clos-
ing argument at a felony criminal trial if the defendant’s coun-
sel has, for trial tactic or legal strategy purposes, agreed to
such appointment.1

  [2] “The Federal Magistrates Act, 28 U.S.C. §§ 631-39,
governs the jurisdiction and authority of federal magistrates.”
United States v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir.
2003) (en banc). The Act allows the district court to assign
magistrate judges certain enumerated duties, as well as any
  1
    While we have examined issues involving consent and magistrate juris-
diction, we have never specifically addressed the question posed in this
appeal. See United States v. Reyna-Tapia, 328 F.3d 1114, 1119 (9th Cir.
2003) (en banc) (holding a magistrate judge may conduct plea colloquies
pursuant to Federal Rule of Criminal Procedure 11 if defendant consents);
United States v. Sanchez-Sanchez, 333 F.3d 1065, 1067 (9th Cir. 2003)
(finding the magistrate judge lacked authority to conduct a revocation pro-
ceeding because neither defendant nor his counsel consented to allowing
the magistrate judge to preside).
                    UNITED STATES v. GAMBA                   4093
“additional duties as are not inconsistent with the Constitution
and laws of the United States.” 28 U.S.C. § 636(b)(3).

   The Supreme Court initially examined the scope of the “ad-
ditional duties” provision of the Act in Gomez v. United
States, 490 U.S. 858 (1989), in the context of whether a mag-
istrate judge had jurisdiction to preside over voir dire in a fel-
ony trial. In Gomez, the Court determined the magistrate
judge had exceeded his jurisdiction by conducting voir dire in
a felony trial over the defendant’s objection. Id. at 876.
Because the Court found no reference to jury selection in the
Federal Magistrates Act or its legislative history, it deter-
mined Congress did not intend to include jury selection within
the § 636(b)(3) “additional duties” provision. Id. at 871-76.

   Two years later, faced with a conflict among the circuits in
interpreting Gomez and applying the § 636(b)(3) catch-all
“additional duties” provision, the Court decided Peretz v.
United States, 501 U.S. 923 (1991). Because the dissent relies
on what we respectfully take to be a misreading of Peretz, we
review its facts and holding at some length.

  In Peretz, the facts were as follows:

    At a pretrial conference attended by both petitioner
    and his counsel, the District Judge asked if there was
    “[a]ny objection to picking the jury before a magis-
    trate?” Petitioner’s counsel responded: “I would love
    the opportunity.” Immediately before the jury selec-
    tion commenced, the Magistrate asked for, and
    received, assurances from counsel for petitioner and
    from counsel for his codefendant that she had their
    clients’ consent to proceed with the jury selection.
    She then proceeded to conduct the voir dire and to
    supervise the selection of the jury. Neither defendant
    asked the District Court to review any ruling made
    by the Magistrate. . . . In the District Court, peti-
4094                UNITED STATES v. GAMBA
    tioner raised no objection to the fact that the Magis-
    trate had conducted the voir dire.

Id. at 925 (citations omitted).

   On appeal from his conviction to the Second Circuit Court
of Appeals, Peretz contended that the lower court had erred
in assigning jury selection to the magistrate and that the
Court’s decision in Gomez required reversal. The Court of
Appeals disagreed, citing its earlier decision in United States
v. Musacchia, 900 F. 2d 493 (2d Cir. 1990), in which “the
Second Circuit had affirmed a conviction in a case in which
the defendant had not objected to jury selection by the Magis-
trate.” Id. at 926. In order to illustrate the conflict among the
circuits, the Supreme Court then quoted approvingly and at
length from the Second Circuit’s Musacchia opinion:

    Appellants additionally claim that Gomez states that
    a magistrate is without jurisdiction under the Federal
    Magistrates Act to conduct voir dire. We disagree.
    Since Gomez was decided we and other circuits have
    focused on the ‘without defendant’s consent’ lan-
    guage and generally ruled that where there is either
    consent or a failure to object a magistrate may con-
    duct the jury voir dire in a felony case. See [United
    States v. Vanwort, 857 F. 2d 375, 382-383 (2d Cir.
    1989), cert. denied sub nom. Chaptoteau v. United
    States, 495 U.S. 906 (1990); United States v. Mang
    Sun Wong, 884 F. 2d 1537, 1544 (2d Cir. 1989),
    cert. denied, 493 U.S. 1082 (1990); United States v.
    Lopez-Pena, 915 F.2d 1542, 1545-1548 (1st Cir.
    1989)] (not plain error to permit magistrate to pre-
    side since objection to magistrate must be raised or
    waived); Government of the Virgin Islands v. Wil-
    liams, 892 F.2d 305, 310 (3d Cir. 1989) (absent
    demand no constitutional difficulty under
    § 636(b)(3) with delegating jury selection to magis-
    trate); United States v. Ford, 824 F. 2d 1430, 1438-
                   UNITED STATES v. GAMBA                       4095
    39 (5th Cir. 1987) (en banc) (harmless error for mag-
    istrate to conduct voir dire where defendant failed to
    object), cert denied, 484 U.S. 1034 (1988); United
    States v. Wey, 895 F.2d 429 (7th Cir. 1990) (jury
    selection by magistrate is not plain error where no
    prejudice is shown).

Id. (emphasis added).

   After noting that the holding in Gomez was “carefully lim-
ited to the situation in which the parties had not acquiesced
at trial to the magistrate’s role” and had divided the Courts of
Appeals, the Court commented that “[o]n the other hand,
those courts had uniformly rejected challenges to a magis-
trate’s authority to conduct the voir dire when no objection to
his performance of the duty had been raised in the trial court.”
Id. at 928.

   After extolling the now essential role played by magistrate
judges in helping district court judges handle their “bloated
dockets,” id. at 928, and concluding that with the defendant’s
consent the constitutional analysis is successfully negotiated,
it noted:

    The generality of the category of “additional duties”
    indicates that Congress intended to give federal
    judges significant leeway to experiment with possi-
    ble improvements in the efficiency of the judicial
    process that had not already been tried or even fore-
    seen. If Congress had intended strictly to limit these
    additional duties to functions considered in the com-
    mittee hearings or debates, presumably it would have
    included in the statute a bill of particulars rather than
    a broad residuary clause. Construing this residuary
    clause absent concerns about raising a constitutional
    issue or depriving a defendant of an important right,
    we should not foreclose constructive experiments
    that are acceptable to all participants in the trial pro-
4096                UNITED STATES v. GAMBA
    cess and are consistent with the basic purposes of the
    statute.

Id. at 932-33.

  The Court next dealt with the issue of waiver in the context
of magistrate jurisdiction.

    “We have previously held that litigants may waive
    their personal right to have an Article III judge pre-
    side over a civil trial. The most basic rights of crimi-
    nal defendants are similarly subject to waiver. Just as
    the Constitution affords no protection to a defendant
    who waives these fundamental rights, so it gives no
    assistance to a defendant who fails to demand the
    presence of an Article III judge at the selection of his
    jury.”

Id. at 936-37 (citations omitted).

   [3] The Court also found additional protections to defen-
dants by virtue of the fact that “[t]he ultimate decision
whether to invoke the magistrate’s assistance is made by the
district court, subject to veto by the parties.” Id. at 937. Fur-
thermore, “[b]ecause the entire process takes place under the
district court’s total control and jurisdiction, there is no dan-
ger that use of the magistrate involves a congressional attem-
p[t] to transfer jurisdiction [to non-Article III tribunals] for
the purpose of emasculating constitutional courts.” Id. (inter-
nal citations and quotation marks omitted). Finally, the Court
held “that permitting a magistrate to conduct the voir dire in
a felony trial when the defendant raises no objection is
entirely faithful to the congressional purpose in enacting and
amending the Federal Magistrates Act.” Id. at 940.

   [4] Following the Supreme Court’s focus on the defen-
dant’s consent in Peretz, this court articulated a two-pronged
test to determine whether a duty, not specified in the Act, may
                    UNITED STATES v. GAMBA                  4097
be delegated to a magistrate judge under the catch-all “addi-
tional duty” provision, § 636(b)(3). Reyna-Tapia, 328 F.3d at
1119. We determined that whether a duty designated to a
magistrate judge falls under § 636(b)(3) “depends, first and
foremost, on whether the parties have consented, and sec-
ondly, on whether the additional duties bear some relation to
the specified duties that magistrate judges can perform.” Id.
(citation and internal quotation marks omitted).

                         A.   Consent

   The central issue before this panel is the degree to which
a defendant himself must be involved in the decision to allow
a magistrate judge to preside over closing argument. Because
Sheehy’s decision to consent to Magistrate Judge Erickson
presiding over Gamba’s closing argument was a technical and
strategic legal decision, we hold it is a decision that an attor-
ney may properly make on a defendant’s behalf.

   [5] Numerous courts have held that defense counsel may
waive constitutional rights of the accused as part of the trial
strategy or tactics. In Wilson v. Gray, 345 F.2d 282, 286 (9th
Cir. 1965), cert. denied, 383 U.S. 919 (1965), for example, we
determined that counsel may waive the accused’s Sixth
Amendment right to cross-examination and confrontation as
a matter of trial tactics or strategy. There, defense counsel
stipulated that a matter could be heard on the transcript of the
preliminary hearing, though each side retained the right to
produce additional evidence at trial. Id. at 287. We found that
this decision was “deliberately made as a matter of trial tactics
and strategy” because the accused was charged with assault
with a deadly weapon, and the transcript of the witness testi-
mony was “far more innocuous than the appearance of that
witness before the state judge could ever have been.” Id. at
287-88 & n.8. We concluded that in this instance the defen-
dant’s “right to cross examine and confront prosecution wit-
nesses was effectively waived by his counsel.” Id. at 288; see
also United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999)
4098               UNITED STATES v. GAMBA
(“We therefore join the majority of circuit courts of appeals
and hold that defense counsel may waive a defendant’s Sixth
Amendment right to confrontation where the decision is one
of trial tactics or strategy that might be considered sound.”).

   [6] Just as defense counsel made a tactical decision to
waive his client’s Sixth Amendment right to cross-
examination and confrontation in Wilson v. Gray, Sheehy’s
decision to consent to Magistrate Judge Erickson presiding
over Gamba’s closing argument (to which Gamba made no
objection when the agreement was announced in open court)
was also a strategic choice. As Sheehy explained in a letter to
Gamba, “if we had objected to Judge Erickson coming in and
listening to the closing arguments, rather than Judge Molloy,
Judge Molloy would have simply delayed the closing argu-
ment and I did not see the merit in doing that.” Based on the
record before this court, it appears that Sheehy understood the
nuances of the case, observed the jury, and made a strategic
decision that a continuance would disadvantage his client.
This is precisely the type of tactical decision that counsel is
retained to provide. See Gideon v. Wainwright, 372 U.S. 335,
345 (1963) (emphasizing the importance of the knowledge
and skill counsel brings to bear when representing a defendant
in a criminal trial).

  [7] Moreover, the Supreme Court in Florida v. Nixon, 543
U.S. 175 (2004), explained that:

    An attorney undoubtedly has a duty to consult with
    the client regarding important decisions, including
    questions of overarching defense strategy. That obli-
    gation, however, does not require counsel to obtain
    the defendant’s consent to every tactical decision.
    But certain decisions regarding the exercise or
    waiver of basic trial rights are of such moment that
    they cannot be made for the defendant by a surro-
    gate. A defendant, this Court affirmed, has the ulti-
    mate authority to determine whether to plead guilty,
                      UNITED STATES v. GAMBA                       4099
      waive a jury, testify in his or her own behalf, or take
      an appeal. Concerning those decisions, an attorney
      must both consult the defendant and obtain consent
      to the recommended course of action.

Id. at 187 (internal citations and quotation marks omitted)
(emphasis added). Although the Court did not provide an
exhaustive list of “basic trial rights,” the Court did not list the
right to an Article III judge presiding over closing argument
as one of those rights, and it cannot reasonably be said that
such a “right”— if there is one at all— rises to the level of
such basic and fundamental rights as deciding whether to
plead guilty or appeal one’s conviction, particularly in light of
Peretz. Thus, Gamba’s consent was not necessary for Sheehy
to agree to Magistrate Judge Erickson presiding over closing
argument.

   Despite the fact that Sheehy made an appropriate tactical
decision, the dissent interprets Peretz to require a defendant’s
knowing, informed, and personal consent to a magistrate
judge’s jurisdiction. Dissent at 4103; see also United States v.
Maragh, 174 F.3d 1202,1206 (11th Cir. 1999) (remanding the
case to the district court for an evidentiary hearing on whether
the defendant personally consented to a magistrate judge con-
ducting voir dire in a felony criminal proceeding). The dissent
extrapolates this rule from two facts in Peretz: (1) the defen-
dant and his counsel both attended the pre-trial conference
where the counsel consented to the magistrate judge’s juris-
diction, and (2) in response to the magistrate’s question, coun-
sel indicated she had defendant’s consent to proceed with jury
selection. Dissent at 4104-4105 (citing Peretz, 501 U.S. at 925).2
However, there is no express indication in Peretz that the
defendant ever personally consented to the magistrate’s pres-
  2
   Arguably, Gamba’s presence in court when Judge Molloy announced
the agreement of the parties that the magistrate judge would preside over
closing argument in his absence is comparable to Peretz’s presence in the
pre-trial conference.
4100                   UNITED STATES v. GAMBA
ence, or that the Court requires that such consent to be person-
ally given. Peretz, 501 U.S. at 936 n.2 (explaining the defense
counsel’s duty to weigh the costs and benefits of a magistrate
judge’s supervision of voir dire). Moreover, despite Justice
Marshall’s dissent in Peretz, the Court declined to extend the
express consent requirement found in 18 U.S.C. § 3401(b),
which requires a defendant charged with a misdemeanor to
expressly consent to be tried before a magistrate judge, to
apply to a magistrate judge’s ability to perform “additional
duties” under § 636(b)(3). See Peretz, 501 U.S. at 947 n.6
(Marshall, J., dissenting) (arguing that the written and express
consent requirements found in 18 U.S.C. § 3401 should have
been applied to the § 636(b)(3) additional duties provision).
We do not know, as suggested by the dissent, whether the
Peretz court “contemplated” that defendant’s consent must be
personal, but it by no means required it.3 Dissent at 4106.

   The dissent also argues that because the magistrate judge
lacks familiarity with the proceeding, allowing him to preside
over closing argument risks “a fractured judicial approach and
rulings inconsistent with prior proceedings.” Dissent at 4109.
This proposition actually reinforces our argument that such a
decision is necessarily strategic and technical in nature, and,
therefore, best made by an attorney. Few defendants have the
training to permit them to appreciate the various legal con-
cerns at issue when a magistrate judge is delegated authority
to preside over closing argument. Because an attorney under-
stands the importance of consistency in a trial proceeding, he
is best equipped to make an immediate determination as to the
risks or benefits of accepting a magistrate judge as a substitute
for a district court judge. Attorney Sheehy’s decision to allow
  3
   The Supreme Court is habitually clear when a defendant’s personal and
informed consent is required to waive a constitutional right. See, e.g.,
Boykin v. Alabama, 395 U.S. 238, 241-43 (1969) (explaining that a guilty
plea and the waiver of right to counsel must be made “knowingly” and
“intelligently” by the defendant). Notably, the Court did not include such
language in Peretz.
                        UNITED STATES v. GAMBA                         4101
a magistrate judge to preside over closing argument in
Gamba’s trial was a strategic, technical legal decision and
Gamba’s personal consent was not required.4

   Even if the dissent were correct and we were to hold that
Gamba’s personal, knowing consent to the magistrate presid-
ing over the closing arguments in his trial was required, he
has waived his right to object to Magistrate Judge Erickson’s
presence by failing to raise his objection when Judge Molloy
announced the agreement of the parties, at the time of the jury
verdict, at sentencing or in his first appeal. Under Peretz,
Gamba’s failure to object clothed the magistrate with author-
ity to preside over the closing arguments.

                        B.    Additional Duties

   In addition to finding the required consent, we must deter-
mine whether closing argument “bear[s] some relation to the
specified duties” that magistrate judges are already authorized
to perform. Peretz, 501 U.S. at 930. We hold that it does.

   [8] In Peretz, the Court found that the Act’s “additional
duties clause permits a magistrate to supervise jury selection
in a felony trial provided the parties consent.” Id. at 933
(internal quotation marks omitted). The Court reasoned that
the responsibility and importance of presiding over voir dire
at a felony trial are comparable to the duties and responsibility
that magistrate judges have in supervising entire civil and
misdemeanor trials. Id.; see also 28 U.S.C. § 636(a) (with the
parties’ consent, a district court judge may delegate the super-
vision of entire civil and misdemeanor trials to a magistrate
  4
   In Peretz, the Court also found that “a defendant has no constitutional
right to have an Article III judge preside at jury selection if the defendant
has raised no objection to the judge’s absence.” Peretz, 501 U.S. at 936.
Therefore, even if Gamba’s counsel had not consented to Magistrate Judge
Erickson’s supervision of closing argument, any failure to object to Judge
Molloy’s absence would have been deemed a waiver of Gamba’s right to
an Article III judge at critical stages of a felony criminal proceeding.
4102                UNITED STATES v. GAMBA
judge). The Peretz Court, as noted above, also encouraged the
district courts to experiment in the use of magistrates to carry
out functions not previously considered so long as the parties
consent or the defendant fails to object.

   [9] The reasoning the Court applied in Peretz equally
extends to closing argument. If a magistrate judge can con-
duct jury selection, then, logically, he can preside over closing
argument as well. A magistrate judge who conducts a civil or
misdemeanor trial necessarily must preside over closing argu-
ment. Closing argument clearly bears a relation to specified
duties magistrate judges are statutorily authorized to perform.
Accordingly, where defense counsel consents to proceed
before a magistrate judge for tactical or strategic reasons,
there is neither a constitutional nor a statutory impediment to
delegating closing argument in criminal cases to magistrate
judges. See Reyna-Tapia, 328 F.3d at 1121.

            C.   Ineffective Assistance of Counsel

   Since we hold that the magistrate judge had jurisdiction in
this case because of defense counsel’s consent due to trial
strategy or tactics and the close relationship between presid-
ing over closing argument and a magistrate judge’s statutorily
specified duties, Sheehy’s conduct was not objectively unrea-
sonable and Gamba cannot make the necessary showing of
prejudice to show ineffective assistance of counsel. Strickland
v. Washington, 466 U.S. 668 (1984).

                        CONCLUSION

   We affirm the district court’s denial of Gamba’s 28 U.S.C.
§ 2255 motion. Where the decision is one of trial tactics or
legal strategy, defense counsel may waive the defendant’s
right to have an Article III judge preside over closing argu-
ment without the defendant’s personal, informed consent.

  AFFIRMED.
                    UNITED STATES v. GAMBA                    4103
FISHER, Circuit Judge, dissenting:

   I do not quarrel with the majority’s conclusion that the dis-
trict court had the authority to delegate to the magistrate judge
the responsibility for presiding over the closing argument.
Nor do I fault the district court for proposing to utilize the ser-
vices of the magistrate judge under the circumstances here.
But I do disagree that such a delegation of jurisdiction at this
critical stage of the proceedings was proper without obtaining
the knowing and informed consent (or acquiescence) of the
defendant himself, not simply by way of a unilateral “tactical”
decision by his attorney. See United States v. Maragh, 174
F.3d 1202, 1206 (11th Cir. 1999). In that respect, I respect-
fully dissent.

                                I.

   In Gomez v. United States, 490 U.S. 858 (1989), the
Supreme Court held that where the defendant had timely
objected to the magistrate judge conducting voir dire, the “ad-
ditional duties” a federal judge may assign to a magistrate
judge under the Federal Magistrates Act (FMA) do not
include the selection of a jury in a felony trial. Id. at 860, 871-
72. In Peretz v. United States, 501 U.S. 923 (1991), the Court
reaffirmed Gomez but held that “the defendant’s consent war-
rants a different result.” Id. at 925. The question now before
us is what constitutes the crucial “defendant’s consent.”

   The majority and I agree that presiding over closing argu-
ments at a felony trial is a critical stage of the proceedings.
See Peretz, 501 U.S. at 923 (stating that “those specified
duties [in the Federal Magistrate Act] that were comparable
to jury selection in a felony trial could be performed only with
the consent of the litigants”); see also United States v. Gomez-
Lepe, 207 F.3d 623, 629 (9th Cir. 2000) (holding that con-
ducting a jury poll that calls into question the jury’s unanimity
is a critical stage of a criminal proceeding due to the possibil-
ity the presiding judge will need to exercise discretion).
4104                UNITED STATES v. GAMBA
   We also agree that Gamba had to consent to the magistrate
judge substituting for the district judge, but the majority is
content to rely solely on defendant’s trial counsel’s consent.
I acknowledge that Peretz is not entirely clear as to how the
defendant’s consent must be established. But, like the Elev-
enth Circuit in Maragh, I read the Supreme Court as requiring
some evidence that the defendant has personally and know-
ingly agreed to the substitution of a magistrate judge for an
Article III judge — evidence that is lacking here.

   Peretz made clear that “the litigants’ consent makes the
crucial difference” when “constru[ing] the additional duties
clause to include responsibilities of far greater importance
than the specified duties assigned to magistrates.” Peretz, 501
U.S. at 933. In doing so, the Court noted that the defendant’s
due process right to have an Article III judge preside over the
critical stages of his felony trial is an underlying concern
when interpreting the “additional duties” proviso of the FMA.
See id. at 932-33. Congress specifically limited assignments
to “such additional duties as are not inconsistent with the
Constitution and laws of the United States.” 28 U.S.C.
§ 636(b)(3). In interpreting the FMA, therefore, it is “settled
policy to avoid an interpretation . . . that engenders constitu-
tional issues.” Peretz, 501 U.S. at 929 (quoting Gomez, 490
U.S. at 864). This framework controls our assessment of
whether the “crucial” element of defendant’s consent to the
magistrate judge’s jurisdiction has been established.

   Whatever ambiguity may exist in Peretz, the Supreme
Court has never endorsed the legitimizing force of consent to
a magistrate judge’s jurisdiction on a record so devoid of any
indication that the defendant himself understood and know-
ingly waived his right to have a “person with jurisdiction to
preside” over all critical stages of his felony trial. Gomez, 490
U.S. at 876. In Peretz, the Court noted that “both petitioner
and his counsel” attended the pre-trial conference at which the
counsel consented to the magistrate judge’s jurisdiction and
that the magistrate judge thereafter specifically asked counsel
                    UNITED STATES v. GAMBA                  4105
whether she had the “clients’ consent to proceed with the jury
selection.” 501 U.S. at 925 (emphasis added). The Court did
not specify whether the petitioner’s presence and failure to
object were necessary components of his consent, but the
Eleventh Circuit has understood them as such. See Maragh,
174 F.3d at 1206. Maragh noted that “[i]n Peretz, the specific
consent that the Supreme Court approved consisted of (a) trial
counsel’s agreement to the procedure, (b) trial counsel’s rep-
resentation that the client was aware of and agreed to the pro-
cedure, and (c) the lack of any objection from the defendant
in the district court.” Id. Maragh is buttressed by Peretz’s
suggestion that the defendant, not just his attorney, must agree
to a magistrate judge: “ ‘If a criminal defendant, together with
his attorney, believes that the presence of a judge best serves
his interests during the selection of the jury, then Gomez pre-
serves his right to object to the use of a magistrate.’ ” Peretz,
501 U.S. at 935 (quoting Government of the Virgin Islands v.
Williams, 892 F.2d 305, 311 (3d Cir. 1989)) (emphasis
added).

   Here, neither the district judge nor the magistrate judge
ever asked for or received consent in the presence of the
defendant. The colloquy from the pretrial conference quoted
by the majority makes clear that Gamba was not aware of,
much less necessarily in agreement with, his attorney’s con-
sent to the plan to allow the magistrate judge to preside over
part of closing arguments. Gamba was not present at this con-
ference — at which the idea of the magistrate judge’s partici-
pation was proposed for the first time — and when the district
judge asked Gamba’s attorney if his client “was all right” with
the plan, the attorney simply replied, “Yeah, he won’t care.”
The judge did not seek consent at any other time, but stated
in court only that “the parties ha[d] consented” to the magis-
trate judge’s role during closing arguments. The district court
later concluded that Gamba’s attorney “fail[ed] to obtain
[Gamba’s] personal consent to allow Judge Erickson to pre-
side over closing arguments” and “fail[ed] to inform Gamba
of his right to personally give or withhold consent to the mag-
4106                UNITED STATES v. GAMBA
istrate’s jurisdiction.” As the district court found, “Gamba
was presented with the magistrate’s jurisdiction as a fait
accompli.” Thus, it is clear that Gamba did not know of his
right to refuse the magistrate judge’s jurisdiction and that
Gamba had no opportunity to “decline to consent to the mag-
istrate’s supervision” had he “perceive[d] any threat of injury
from the absence of an Article III judge” at closing argument.
Peretz, 501 U.S. at 935.

   I disagree with the majority that Gamba’s right to refuse to
consent to a magistrate judge’s jurisdiction is one that his
attorney may waive “as a matter of trial tactics or strategy.”
Majority Op. at 4097 (citing Wilson v. Gray, 345 F.2d 282,
288-89 (9th Cir. 1965)). Indeed, its dictum that “even if
Gamba’s counsel had not consented to Magistrate Judge
Erickson’s supervision of closing argument, any failure to
object to Judge Molloy’s absence would have been deemed a
waiver of Gamba’s right to an Article III judge at critical
stages of a felony criminal proceeding,” Maj. Op. at 4101 n.4
(emphasis added), is startling. This extension of Peretz, which
went to great lengths to explain why a defendant’s consent
was “crucial,” Peretz, 501 U.S. at 933-35, is both inconsistent
with the Court’s concern that there be some manifestation of
consent and trivializes the nature and import of having an
Article III judge preside over the critical phases of a felony
trial.

   First, Peretz’s reference to the right of “a criminal defen-
dant, together with his attorney” to object to the use of a mag-
istrate judge suggests that the Court contemplated that the
defendant would personally participate in the decision to
waive his right to an Article III judge. See Peretz, 501 U.S.
at 935. After all, it is “the defendant’s consent [that] signifi-
cantly changes the constitutional analysis” — legitimizing the
delegation because “there is no Article III problem when a
district court judge permits a magistrate [to preside] in accor-
dance with the defendant’s consent.” Id. at 932 (emphasis
                        UNITED STATES v. GAMBA                          4107
added).1 The majority invokes an attorney’s greater “under-
stand[ing of] the importance of consistency in a trial proceed-
ing” and ability to “make an immediate determination as to
the risks or benefits of accepting a magistrate judge as a sub-
stitute for a district court judge.” Maj. Op. at 4100. The
majority is undoubtedly correct that an attorney will be “best
equipped” to understand the “legal concerns at issue,” but
such is the case in all legal decisions that we reserve to the
defendant personally. Id. That a lawyer may have a better
grasp of the risks and benefits of a bench trial rather than a
jury trial does not mean that we allow attorneys to waive their
client’s right to the former.2 Nor is the decision regarding con-
sent to a magistrate judge’s jurisdiction “immediate” in the
sense of some trial decisions, id., such as objections during
witness testimony that must be made or waived. A district
court must plan for the magistrate judge’s substitution and
  1
     The Court did note that some of “[t]he most basic rights of criminal
defendants are . . . subject to waiver,” citing numerous cases in which a
defendant’s failure to object constituted a waiver of the right at issue. Per-
etz, 501 U.S. at 936-37. Some of these failures — such as not objecting
on Fourth or Fifth Amendment grounds — were obviously attributable to
the defendants’ lawyers rather than the defendants themselves. However,
the Court was invoking these cases to illustrate that the right to an Article
III judge at a critical stage of a criminal trial is subject to waiver if the
defendant consents, not to resolve the nature of that consent in all cases.
Significantly, unlike instances in which a court is obliged to address an
issue only if raised, here delegation to the magistrate judge required the
district court affirmatively to obtain the defendant’s consent. Thus, the
most I would infer from the Court’s waiver discussion is that the defen-
dant may knowingly acquiesce — which was not the circumstance here.
   2
     I have more faith than the majority that even an unsophisticated defen-
dant can grasp the distinction between appearing before the same person
throughout his trial and appearing before a different person at different
stages of the trial. It does not take a law degree or litigation experience to
realize that there may be some risks and benefits to consenting to a lower-
level judicial officer; even students know the difference between the regu-
lar teacher and the substitute. Our fine magistrate judges may well provide
the same quality of trial administration more expeditiously than our over-
worked district judges, but that does not mean that we should allow a
defendant’s attorney unilaterally to opt for the former.
4108               UNITED STATES v. GAMBA
affirmatively obtain the litigants’ consent — probably during
a conference, as was the case here and in Peretz.

   Second, in construing the “additional duties” clause, we
must not forget that “federal magistrates are creatures of stat-
ute, and so is their jurisdiction.” N.L.R.B. v. A-Plus Roofing,
Inc., 39 F.3d 1410, 1415 (9th Cir. 1994). The explicit, per-
sonal consent that Congress requires for a magistrate judge to
assume jurisdiction over even misdemeanor trials counsels
against the majority’s position. The Federal Magistrates Act
incorporates 18 U.S.C. § 3401(b)’s provision that:

    Any person charged with a misdemeanor, other than
    a petty offense may elect, however, to be tried before
    a district judge for the district in which the offense
    was committed. The magistrate judge shall carefully
    explain to the defendant that he has a right to trial,
    judgment, and sentencing by a district judge and that
    he may have a right to trial by jury before a district
    judge or magistrate judge. The magistrate judge may
    not proceed to try the case unless the defendant,
    after such explanation, expressly consents to be tried
    before the magistrate judge and expressly and spe-
    cifically waives trial, judgment, and sentencing by a
    district judge. Any such consent and waiver shall be
    made in writing or orally on the record.

See 28 U.S.C. § 636(a)(3) (incorporating 18 U.S.C. § 3401 by
reference) (emphasis added). The Supreme Court did not
extend § 3401’s specific consent requirements to a magistrate
judge’s assumption of jurisdiction over felony trial voir dire.
See Peretz, 501 U.S. at 947 n.6 (Marshall, J., dissenting)
(arguing that the written consent requirements of § 3401
should be adopted). But neither did it endorse a finding of
consent where it is clear that the defendant had neither the
knowledge nor the opportunity to object. Defense counsel in
Peretz was twice asked for, and twice gave, consent to the
magistrate judge’s jurisdiction — at least once in the presence
                    UNITED STATES v. GAMBA                  4109
of the defendant himself. See Peretz, 501 U.S. at 925. Thus,
Peretz was on notice that he could have objected to the magis-
trate judge’s jurisdiction had he decided to do so.

    Third, because closing argument is a critical stage of trial,
it is important not to undermine Peretz’s consent requirement.
When a magistrate judge presides over only a discrete portion
of the trial — particularly closing arguments — there is the
danger that the defendant will suffer from a fractured judicial
approach and rulings inconsistent with prior proceedings. For
example, objections during closing arguments, such as
whether the government improperly argued facts not in evi-
dence, would be difficult to adjudicate fairly without exposure
to the entire trial. The importance of consistency and the pre-
siding judge’s familiarity with the proceedings as a whole is
underscored by Federal Rule of Criminal Procedure 25(a)(2),
which requires that an Article III judge who takes over for
another Article III judge once trial has begun but before a ver-
dict is rendered must “certif[y] familiarity with the trial
record.” If the assumption of jurisdiction by an Article III
judge requires such certification, the assumption of jurisdic-
tion by an Article I judge — which is unaccompanied by any
such certification — should at least be plainly consented to by
the defendant.

   Finally, the pressure that an attorney might feel to accom-
modate the judge’s schedule cuts against eliminating a defen-
dant’s right to personally consent to or refuse a magistrate
judge’s jurisdiction over a critical stage of his trial. Although
there is no hint here that Chief Judge Molloy exerted any
pressure on the attorneys to acquiesce, we should be careful
not to eliminate possible checks on the inherent desire to stay
in a judge’s good graces by consenting where the defendant
himself — if asked — might not.

   For the foregoing reasons, I would hold that Gamba did not
give the requisite consent to the magistrate judge’s jurisdic-
tion during closing arguments of his trial.
4110                UNITED STATES v. GAMBA
                               II.

   Given my view that there was no effective consent to the
magistrate judge’s jurisdiction, the next question is whether
this error requires reversal. It is tempting to conclude that we
may apply harmless error analysis to what I believe was error
here. The Supreme Court in Gomez held, however, that
“harmless-error analysis does not apply in a felony case in
which, despite the defendant’s objection and without any
meaningful review by a district judge, an officer exceeds his
jurisdiction by selecting a jury.” Gomez, 490 U.S. at 876.
There are key differences between voir dire and closing argu-
ments — differences that arguably make harmless error analy-
sis more appropriate in connection with the latter. A primary
purpose of voir dire is to ferret out bias, see Darbin v. Nourse,
664 F.2d 1109, 1113 (9th Cir. 1981), and removing the dis-
trict judge from supervising that process could compromise in
untraceable ways an important check on assuring an impartial
jury if the process is flawed, see Gomez, 490 U.S. at 876. The
potential for such hard-to-establish prejudice is much less dur-
ing closing arguments, and indeed we routinely review errors
during closing argument for harmlessness. See, e.g., Hovey v.
Ayers, 458 F.3d 892, 912 (9th Cir. 2006) (holding that “prose-
cutor’s inappropriate comments” during closing arguments
regarding defendant’s refusal to testify were harmless because
they “were isolated statements, and . . . minimal in compari-
son with the weight of the evidence presented”); United States
v. Marcucci, 299 F.3d 1156, 1158 (9th Cir. 2002) (reviewing
a prosecutor’s allegedly inflammatory statement during clos-
ing argument under the harmless error standard). Here, there
is no allegation that the magistrate judge’s participation
caused any specific prejudice. No objections were raised dur-
ing closing arguments, and the magistrate judge was not cal-
led upon to make any rulings. There is no indication that the
magistrate judge interacted with the jury in any way that
could have affected its impartiality.

   Notwithstanding the practical appeal of applying harmless
error analysis to the magistrate judge’s improperly assumed
                    UNITED STATES v. GAMBA                     4111
jurisdiction here, this route appears to be foreclosed by the
Supreme Court’s analysis in Gomez:

    Among those basic fair trial rights that can never be
    treated as harmless is a defendant’s right to an
    impartial adjudicator, be it judge or jury. Equally
    basic is a defendant’s right to have all critical stages
    of a criminal trial conducted by a person with juris-
    diction to preside.

490 U.S. at 876 (citations and internal quotation marks omit-
ted). Thus the Supreme Court has explicitly linked the right
to have a person with jurisdiction to preside to the right to an
impartial adjudicator and clearly indicated that neither right
can ever “be treated as harmless.” Id. To be sure, in Peretz,
the Court concluded that there was no structural error in the
magistrate judge’s assumption of jurisdiction, see Peretz, 501
U.S. at 937, suggesting that its earlier statement in Gomez
may have been overly broad. However, the Court did not
explicitly overrule this aspect of Gomez, and therefore we are
still bound by it. See United States v. Weiland, 420 F.3d 1062,
1080 n.16 (9th Cir. 2005) (“[W]e are bound to follow a con-
trolling Supreme Court precedent until it is explicitly over-
ruled by that Court.”).

   Accordingly, I would reverse Gamba’s conviction and
remand for a new trial. I agree with Gamba that he suffered
ineffective assistance of counsel in his unsuccessful appeal.
Gamba’s first appellate lawyer — who also served as his trial
counsel — “ignored issues [that] are clearly stronger than
those presented,” so “the presumption of effective assistance
of counsel [is] overcome.” Smith v. Robbins, 528 U.S. 259,
288 (2000) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th
Cir. 1986)). Because the district court’s error was not harm-
less, Gamba has also demonstrated prejudice, thus satisfying
“both prongs of the Strickland test,” as he is required to do in
order to prevail in this collateral attack on his conviction. Id.
at 289.
4112               UNITED STATES v. GAMBA
   For the foregoing reasons, I would decline to create a split
in authority with the Eleventh Circuit and I respectfully dis-
sent.
