                     UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT


                             __________________

                                  00-50296
                              Summary Calendar
                             __________________



     UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,

                                     v.

     JOHNNY ALBERT MARTINEZ, also known as Red Rider,

                                               Defendant-Appellant.

            ______________________________________________

         Appeal from the United States District Court for the
                       Western District of Texas
                     (W-99-CV-264 & W-95-CR-7-11)
            ______________________________________________
                           September 21, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Johnny Albert Martinez, together with numerous codefendants,

was charged with conspiracy to possess marijuana with intent to

distribute     and   with   possession    of   marijuana   with   intent   to

distribute.    A jury found Martinez guilty of the conspiracy charge

and not guilty of the substantive offense.             The district court

sentenced Martinez to a term of 151 months of imprisonment and a


     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
five-year term of supervised release.          This Court affirmed his

conviction on direct appeal.       See United States v. Cortinas, 142

F.3d 242 (5th Cir. 1998).

       Subsequently, Martinez filed a motion to vacate his sentence

under 28 U.S.C. § 2255 in the district court.      After the government

had responded, Martinez filed a reply brief in which he raised for

the first time the claim of denial of counsel at a critical stage

of the proceedings.      The district court denied relief without

addressing the newly argued claim.

       Martinez filed a notice of appeal and application for a

certificate of appealability (COA).      The district court denied a

COA.     Martinez   subsequently   requested   a   COA   of   this   Court.

Ultimately, we granted a COA on the following issues: (1) whether

the district court erred in failing to address Martinez’s reply

brief as an implicit motion for leave to amend his § 2255 motion;

(2) whether Martinez is procedurally barred from raising his claim

that counsel was absent at a critical stage because he had not

raised the issue on direct appeal; and (3) whether Martinez has set

forth a valid claim of denial of counsel.

       ANALYSIS

       Martinez claims that because his counsel was not present when

the district court responded to a note from the jury, he was denied

the assistance of counsel at a critical stage, and thus prejudice




                                    2
should    be    presumed.1        Relief     under    §   2255      is    reserved    for

transgressions of constitutional rights and for a narrow range of

injuries that could not have been raised on direct appeal and which

would, if condoned, result in a complete miscarriage of justice.

United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).                            In

reviewing      the     district    court’s     denial     of    relief,     this   Court

examines the factual findings for clear error and conclusions of

law de novo.      United States v. Faubion, 19 F.3d 226, 228 (5th Cir.

1994).

     Martinez’s         convictions      are    related        to   a    drug-smuggling

organization headed by Daniel Nieto. During its deliberations, the

jury requested a copy of the transcript of Nieto’s testimony.                         The

district       court    noted     that   although       the     attorneys    had     been

instructed to provide a telephone number, the court was unable to

contact    three       attorneys,    including       Martinez’s         lawyer.      Four

attorneys were present in the courtroom.                        After receiving no

objection from those attorneys, the district court advised the jury

that it could provide a transcript only if needed to answer a very

specific question and that the jury should try to frame a question

“as carefully as you can.”           The court also informed the jury that



     1
         Martinez asserts that the district court erred in denying
his implicit motion to amend his complaint with the issue of denial
of counsel. Additionally, the government argues that this claim is
procedurally barred. Because we conclude that Martinez’s denial of
counsel claim fails on the merits, we do not reach the arguments
with respect to amending the complaint and procedural bar.

                                           3
it would probably take several hours for the testimony to be

transcribed.    The jury apparently made no further requests.

     Citing United States v. Cronic, 466 U.S. 656, 104 S.Ct. 2039

(1984), Martinez asserts that because he was denied counsel during

a critical stage, he is entitled to relief without a showing of

prejudice.    Recently, we have explained “that the Sixth Amendment

principle    animating    Cronic's   presumption   of   prejudice    is   the

fundamental idea that a defendant must have the actual assistance

of counsel at every critical stage of a criminal proceeding for the

court's   reliance   on    the   fairness   of   that   proceeding   to   be

justified.”    Burdine v. Johnson, 2001 WL 914267, *9 (5th Cir. Aug.

13, 2001) (en banc).      Although Cronic did not provide much guidance

with respect to what parts of a trial are "critical," this Court

had gleaned the following criteria:

            First, there must be a denial of such
            significance that it makes the adversary
            process    itself   unreliable.      [citation
            omitted].    Second, the Cronic court makes
            clear     that    "only    when    surrounding
            circumstances    justify  a   presumption   of
            ineffectiveness can a Sixth Amendment claim be
            sufficient without inquiry into counsel's
            actual performance at trial."

United States v. Russell, 205 F.3d 768, 772 (5th Cir. 2000)

(quoting Cronic, 466 U.S. at 659, 662, 104 S.Ct. at 2047, 2048).

     We are wholly unpersuaded that counsel’s absence under the

above-described circumstances either constituted a denial of such

significance that it made the adversary process itself unreliable


                                     4
or that the surrounding circumstances justify a presumption of

ineffectiveness without examining counsel’s actual performance.

     No evidence was introduced to the jury.   Cf. Burdine, 2001 WL

914267, *9 (holding that counsel’s repeated unconsciousness through

not insubstantial portions of the critical guilt-innocence phase

while evidence was being introduced against petitioner warranted a

presumption of prejudice); United States v. Russell, 205 F.3d 768,

772 (5th Cir. 2000) (finding a critical stage based on counsel’s

two-day absence during which the government presented evidence that

“inferentially increased the taint of guilt” of the defendant).

Further, we discern no other circumstance surrounding counsel’s

brief absence that would render the adversary process unreliable.

     Indeed, the record reveals precisely what occurred during the

brief, finite time counsel was absent. The jury’s note provided as

follows: “Could we have a copy of the transcript of Daniel Nieto’s

testimony?”   After inquiring whether any of the attorneys present

had an objection, the district court instructed the jury:

          Ladies and Gentlemen:
               We are only able to supply a transcript
          of testimony if it is necessary to assist you
          in answering a very specific question about a
          witness’ testimony.     If you have such a
          question, please frame it as carefully as you
          can. Also, you should be aware that it will
          in all likelihood take several hours for the
          Court Reporter to locate the testimony and
          transcribe it.

     In sum, the jury asked to see some evidence, the court

instructed them under what circumstances such evidence would be

                                 5
available, and the jury never made any further attempt to obtain

the evidence.   Unlike other situations in which the Supreme Court

has found no prejudice need be shown,2 the circumstances in the

case at bar are not “so likely to prejudice the accused that the

cost of litigating their effect . . . is unjustified.”   Cronic, 466

U.S. at 658, 104 S.Ct. at 2046.   Accordingly, Martinez has failed

to show that his case falls “within that narrow spectrum of cases

described in Cronic.”   Craker v. McCotter, 805 F.2d 538, 542 (5th

Cir. 1986).3

     For the above reasons, the district court’s judgment is

AFFIRMED.




     2
        Cf. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55 (1932)
(appointment of unprepared counsel on day of trial to represent
defendants charged with atrocious crime); Geders v. United States,
425 U.S. 80, 96 S.Ct. 1330 (1976) (court order preventing defendant
from consulting his attorney during a 17-hour overnight trial
recess between defendant’s direct and cross-examination); Herring
v. New York, 422 U.S. 853, 95 S.Ct. 2550 (1975) (statute granting
judge in a nonjury criminal trial the power to deny counsel the
opportunity to deliver a summation).

     3
        In United States v. Brooks, 786 F.2d 638 (5th Cir. 1986),
the appellant argued that the district court erred in responding to
a jury’s request for evidence when he and his counsel were absent.
It appears this complaint was not based on a denial of counsel
under Cronic, but rather a violation of Rule 43 of the Federal
Rules of Criminal Procedure, which requires the presence of the
defendant “at every stage of the trial.”       We found the error
harmless because the following requirements had been met: (1) the
judge had been distinctly responsive to the inquiry; (2) the
response had clearly stated the law; and (3) the defendant had not
shown any prejudice. Brooks, 786 F.2d at 643 (citing united States
v. Breedlove, 576 F.2d 57, 60 (5th Cir. 1978)).

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