David Hudson v. Kurt Jones

*The Honorable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0421P (6th Cir.)
File Name: 03a0421p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DAVID HUDSON,
Petitioner-Appellee,
v.
KURT JONES,
Respondent-Appellant.
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No. 02-1586
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 98-71756—Avern Cohn, Senior District Judge.
Argued: September 10, 2003
Decided and Filed: December 3, 2003
Before: MOORE and GILMAN, Circuit Judges; MILLS,
District Judge.*
_________________
COUNSEL
ARGUED: Laura Graves Moody, OFFICE OF THE
ATTORNEY GENERAL, HABEAS CORPUS DIVISION,
2 Hudson v. Jones No. 02-1586
Lansing, Michigan, for Appellant. Kevin M. Schad, SCHAD
& COOK, Indian Springs, Ohio, for Appellee. ON BRIEF:
Laura Graves Moody, OFFICE OF THE ATTORNEY
GENERAL, HABEAS CORPUS DIVISION, Lansing,
Michigan, for Appellant. Jeanice Dagher-Margosian, Ann
Arbor, Michigan, for Appellee.
GILMAN, J., delivered the opinion of the court, in which
MILLS, D. J., joined. MOORE, J. (pp. 11-17), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Imprisoned as
the result of a 1985 state-court conviction for murder and for
being a felon in possession of a firearm, David Hudson
petitioned the district court for a writ of habeas corpus. He
contended, among other claims, that he had been denied the
effective assistance of counsel at trial because his lawyer had
been physically absent from court when the judge, at the
request of the deliberating jury, reread selected portions of the
instructions as to certain elements of the crimes charged. The
district court granted Hudson a conditional writ of habeas
corpus on the basis of this claim. For the reasons set forth
below, we REVERSE the judgment of the district court.
I. BACKGROUND
A. Factual background
In April of 1985, Hudson stood trial in a Michigan state
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
took place between the court and counsel:

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No. 02-1586 Hudson v. Jones 3
THE COURT: Before we bring the jury out, gentlemen,
Mr. Young is going to be in Judge Gage’s courtroom in
the Oakland County Circuit Court. The juries often have
a habit of asking for different things. I’ve talked to Mr.
Young, Mr. Janice [the prosecutor] about this. Unless
the request to be reinstructed is extraordinary for some
reason, if the jury asks to be reinstructed, I’m going to go
forward and reinstruct them. Mr. Young, any comment
about that?
MR. YOUNG: No, your Honor. I have no objection.
THE COURT: As I indicated to Mr. Young, if the jury
wants testimony read back, it is my general practice to
try to find out exactly the area of concern to try to
minimize that. Perhaps that kind of thing can be taken
care of over the phone. And if a verdict is reached, we’ll
just wait for Mr. Young to get back.
MR. YOUNG: Thank you, your Honor. I’ll be in Judge
Gage’s. And I will check back with this Court so that
I’m in constant touch. If I can get back here right away,
I will.
Approximately three hours later, the jury sent the following
note to the judge: “We need the definition of aiding and
abetting and the difference between second and first degree
murder.” The jury was then brought into the courtroom.
Hudson, Young, and the prosecutor were all absent. The
judge proceeded to reread to the jury the instructions that had
previously been given concerning the elements of (1) first and
second degree murder, and (2) aiding and abetting.
In the initial instructions (before the jury began to
deliberate), the judge had given a short definition of aiding
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
4 Hudson v. Jones No. 02-1586
used the second, fuller instruction on aiding and abetting. No
other discussion took place and no additional or supplemental
instructions were given. The jury then resumed its
deliberations. One day later, Hudson was found guilty of
first-degree murder and of being a felon in possession of a
firearm.
B. Procedural background
Still represented by Young, Hudson filed a direct appeal.
The Michigan Court of Appeals affirmed his conviction in
September of 1986, and the Michigan Supreme Court denied
leave to appeal in January of 1987.
In October of 1995, Hudson returned to the state trial court
and filed a motion for relief from judgment pursuant to Rule
6.500 of the Michigan Court Rules. That motion was denied
in January of 1996, and Hudson applied for leave to appeal.
The Michigan Court of Appeals denied his application, and
the Michigan Supreme Court did the same. Hudson then
timely filed his federal habeas corpus petition in April of
1998.
The magistrate judge recommended that the petition be
denied in its entirety. This recommendation was adopted by
the district court as to all of Hudson’s claims except his
contention that he had received the ineffective assistance of
counsel when the jury was reinstructed in Young’s absence.
After supplemental briefing, the district court granted Hudson
a conditional writ of habeas corpus on the basis of this claim.
It reasoned that Hudson’s counsel was absent at a critical
stage of the proceedings, so that prejudice should be
presumed pursuant to United States v. Cronic, 466 U.S. 648
(1984). The state filed a motion for reconsideration, which
was denied. This timely appeal followed.

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

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No. 02-1586 Hudson v. Jones 7
§ 2254(b)(2) (“An application for a writ of habeas corpus may
be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the
State.”). In the present case, the question of procedural
default presents a complicated question of Michigan law and
is unnecessary to our disposition of the case. We will
therefore proceed directly to the merits of Hudson’s Cronic
claim.
C. Merits of the Cronic claim
The Sixth Amendment to the United States Constitution
guarantees the effective assistance of trial counsel for criminal
defendants. Strickland v. Washington, 466 U.S. 668, 686
(1984). Generally, to establish constitutionally ineffective
assistance of counsel, a habeas petitioner must show both that
his counsel’s performance fell “below an objective standard
of reasonableness,” id. at 688, and “that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
A criminal conviction must be set aside, however, even
without the showing of any actual prejudice, “if the accused
is denied counsel at a critical stage of his trial.” United States
v. Cronic, 466 U.S. 648, 659 (1984) (discussing the situations
where prejudice should be presumed). Thus, the Supreme
Court “has uniformly found constitutional error without any
showing of prejudice when counsel was either totally absent,
or prevented from assisting the accused[,] during a critical
stage of the proceeding.” Id. at 659 n.25. Hudson has not
demonstrated, nor even contended, that actual prejudice
resulted from his attorney’s absence when the trial judge
responded to the jury’s note. The question on the merits,
therefore, is whether Hudson’s counsel was absent during a
critical stage of the proceedings, so that prejudice should be
presumed under Cronic.
This court’s opinion in United States v. Harris, 9 F.3d 493
(6th Cir. 1993), is relevant to the issue before us. In Harris,
8 Hudson v. Jones No. 02-1586
the court examined the propriety of a situation in which the
jury, at the start of its second day of deliberations, sent a note
to the judge that read: “The jury is having a problem with the
definition of entrapment could we have a copy of the
instructions that were read to us concerning entrapment May
we also have a flip chart and some markers Thank you.” Id.
at 499 (lack of punctuation in original). “Without contacting
the parties, the court responded by providing the jury with a
complete written set of all of the jury instructions read by the
court.” Id.
The Harris court decided that, although the district judge’s
actions technically violated Rule 43 of the Federal Rules of
Criminal Procedure (dealing with when the defendant must be
present), reversal of the conviction was not warranted because
“Defendant is unable to state a reasonable possibility of
prejudice that resulted from the district court’s conduct.” Id.
Implicit in this holding is the conclusion that trial counsel’s
absence was not during a critical stage of the proceedings
because, had the absence occurred during a critical stage,
prejudice would have been presumed under Cronic.
We respectfully disagree with the dissent’s suggestion that
our reliance on Harris involves “an impermissible logical
leap.” Dis. Op. at 17. Although the court in Harris based its
decision on Rule 43 rather than the Sixth Amendment, the
opinion explicitly recognized that the defendant’s counsel was
not present when the trial court reinstructed the jury. See
Harris, 9 F.3d at 495-96 (stating the issue as “whether
prejudicial error occurred when the district court responded to
a note from the jury without notifying counsel”) (emphasis
added). Because the Harris court was aware of trial counsel’s
absence, a reasonable inference can be drawn that the court’s
exclusive focus on Rule 43 is an indication that the Rule 43
argument was perceived to be stronger than the Cronic
argument. So although Harris is not controlling, it supports
the conclusion that the rereading of identical jury instructions
is not a critical stage of a criminal trial.

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No. 02-1586 Hudson v. Jones 9
Similarly, the Seventh Circuit has held that “the court’s
reading of the jury instructions (as opposed, perhaps[,] to a
court’s jury instruction conference with counsel) [is not] a
critical stage of the proceedings.” United States v. Morrison,
946 F.2d 484, 503 (7th Cir. 1991) (emphasis in original). The
Morrison court therefore decided that Cronic was
inapplicable where the trial judge instructed the jury at the
close of evidence in the absence of defense counsel. Id.
Morrison supports the proposition that reading instructions to
the jury is not a critical stage of the proceedings if trial
counsel has previously agreed to the instructions.
On the other hand, in French v. Jones, 332 F.3d 430 (6th
Cir. 2003), this court held that Cronic’s presumption of
prejudice applied where trial counsel was absent when the
state trial judge gave a supplemental instruction to a thrice-
deadlocked jury and “the third instruction was not the
standard deadlocked jury instruction.” Id. at 434, 438.
French, however, is distinguishable from the instant case
because the supplemental instructions given in French had
not been articulated by the trial court before the jury began
deliberating. In contrast, in the present case, the instructions
given by the judge in Young’s absence had been given
verbatim in Young’s presence during the initial charge. The
only difference is that, during the initial charge, other
instructions were interspersed between the murder instruction
and the full aiding-and-abetting instruction. We find this
difference immaterial.
Several cases from other circuits appear to track this new-
versus-repeated distinction. In Curtis v. Duval, 124 F.3d 1,
4 (1st Cir. 1997), for example, the First Circuit stated in dicta
that “recalling the jury for supplementary instructions after
deliberations are underway is a critical stage of a criminal
trial.” But the supplementary instructions in Curtis were new,
not a repeat of earlier instructions given when counsel was
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
10 Hudson v. Jones No. 02-1586
counsel, in response to a note from the deliberating jury, but
“the supplemental instructions were similar to portions of the
charge, given earlier, that counsel had reviewed without
objections.” Gonzalez-Gonzalez v. United States, No.
02-1243, 2002 WL 31416029, at * 2 (1st Cir. Oct. 29, 2002).
The Third Circuit has similarly rejected the application of
Cronic in a situation where, upon a request from the
deliberating jury, the trial judge provided the transcript of
certain testimony without notifying counsel. United States v.
Toliver, 330 F.3d 607 (3d Cir. 2003). “Clarifying the
substantive elements of the charged offense (Curtis) or
instructing a deadlocked jury (French) affirmatively guides
jurors as to how they should fulfill their decisionmaking
function. But submitting verbatim specifically excerpted
record testimony that the jury itself had requested does not
similarly ‘instruct’ the jury.” Id. at 614.
We are of the opinion that the factual situation in the
present case is closer to Harris, Gonzalez-Gonzalez,
Morrison, and Toliver than to French and Curtis. Because
the trial judge here simply repeated, at the jury’s request,
specific instructions that had previously been given in the
presence of Hudson’s counsel, we conclude that their
repetition should not be deemed a “critical stage in the
proceedings.” Prejudice to Hudson will therefore not be
presumed under Cronic, and no actual prejudice has been
shown. The district court thus erred in deciding that Hudson
was entitled to habeas relief on the basis of his Cronic claim.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the
judgment of the district court and REMAND with
instructions to dismiss Hudson’s petition for a writ of habeas
corpus.

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No. 02-1586 Hudson v. Jones 11
_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. A
little more than seventy years ago Justice Sutherland
eloquently described the irreducible right to counsel in a
passage that time has only made more poignant:
The right to be heard would be, in many cases, of little
avail if it did not comprehend the right to be heard by
counsel. Even the intelligent and educated layman has
small and sometimes no skill in the science of law. If
charged with crime, he is incapable, generally, of
determining for himself whether the indictment is good
or bad. He is unfamiliar with the rules of evidence. Left
without the aid of counsel he may be put on trial without
a proper charge, and convicted upon incompetent
evidence, or evidence irrelevant to the issue or otherwise
inadmissible. He lacks both the skill and knowledge
adequately to prepare his defense, even though he have
a perfect one. He requires the guiding hand of counsel at
every step in the proceedings against him. Without it,
though he be not guilty, he faces the danger of conviction
because he does not know how to establish his
innocence. If that be true of men of intelligence, how
much more true is it of the ignorant and illiterate, or
those of feeble intellect. If in any case, civil or criminal,
a state or federal court were arbitrarily to refuse to hear
a party by counsel, employed by and appearing for him,
it reasonably may not be doubted that such a refusal
would be a denial of a hearing, and, therefore, of due
process in the constitutional sense.
Powell v. Alabama, 287 U.S. 45, 68-69 (1932). I respectfully
dissent from the majority opinion because I believe that the
absence of counsel during as critical a stage of the trial as jury
instruction or jury reinstruction presumptively prejudices the
12 Hudson v. Jones No. 02-1586
defendant by sharply undermining the reliability of the
resulting trial. As enunciated in the recently decided French
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’
understanding of the law that they must apply to determine
the defendant’s guilt. The absence of counsel, even when the
previously issued instructions are reread verbatim, impinges
the validity of the trial because the defendant, rarely
knowledgeable in the technical interstices of basic law, let
alone the tangle of jury instruction, cannot respond without
the help of counsel to whatever confusion, problem, or
ambiguity sparks the jury to return to the court for advice.
Initially, I agree with the majority’s decision to reach the
merits of Hudson’s claim raised pursuant to United States v.
Cronic, 466 U.S. 648 (1984), although I would employ
different reasoning, because I believe that Hudson did not
procedurally default his Cronic claim, and even if he did, he
had cause and prejudice to overcome any procedural default.
First, there was no procedural default, because the reason
asserted by the Michigan Court of Appeals and the Michigan
Supreme Court for the default — the failure to comply with
MCR 6.508(D)(3) — does not apply to direct appeals
concluded before MCR 6.508(D)(3)’s effective date of
October 1, 1989. MCR 6.508(D)(3) is not an adequate and
independent state ground that forecloses federal review of
Hudson’s Cronic claim because it was not effective either
when Hudson filed or even when he completed his direct
review. See Gonzales v. Elo, 233 F.3d 348, 353-54 (6th Cir.
2000) (holding that MCR 6.508(D) cannot “serve as an
adequate and independent state ground for the prisoner’s
procedural default” when the prisoner “brought his direct
appeal prior to the rule’s effective date of October 1, 1989”).
Aside from the inapplicability of MCR 6.508(D)(3), Hudson
also did not procedurally default his Cronic claim because he
raised the claim before the Michigan Court of Appeals and
the Michigan Supreme Court on direct appeal. Second, even
if Hudson did procedurally default his claim, cause and

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No. 02-1586 Hudson v. Jones 13
prejudice existed to excuse the default because Hudson’s
direct appeal attorney — the same attorney whose absence
during jury reinstruction gives rise to Hudson’s Cronic claim
— was constitutionally ineffective in failing to raise on
appeal his absence during a critical stage of the trial.
Turning to the majority’s discussion of the merits, I find
myself unable to concur with its result or its reasoning,
because the unexcused absence of defense attorney Young
during the jury reinstruction deprives Hudson of his
constitutional right to counsel during a critical stage of his
trial. It is presumed that Young’s constitutionally deficient
representation would prejudice Hudson if Young “was either
totally absent, or prevented from assisting [Hudson] during a
critical stage of the proceeding.” Cronic, 466 U.S. at 659
n.25 (1984). There is no doubt that Young was absent during
the jury reinstruction, so the central inquiry is whether jury
reinstruction constitutes a critical stage of a proceeding.
The instruction of the jury is a critical stage of a trial no
matter whether the judge is reading the jury instruction for the
first time, supplementing the original instructions with new
instructions, or repeating the initial instructions. The result
reached by the majority opinion is not mandated by
precedent, and it threatens to undermine defendants’ Sixth
Amendment rights. We recently held in French v. Jones, 332
F.3d 430 (6th Cir. 2003), that prejudice was presumed when
a state trial judge gave a supplemental instruction to a
deadlocked jury in the absence of trial counsel. Id. at 438.
Nothing in the opinion limited that holding to situations in
which the judge imparts new information to the jury. Quite
the opposite, we concluded that Cronic applied because,
“French's attorneys did not have an opportunity to respond to
the jury's note nor were they present when the trial judge gave
the supplemental instruction. The uncertainty of the prejudice
French suffered because he was not represented by counsel
during this critical stage of his trial makes the outcome of his
trial unreliable.” Id. (emphasis added). Thus, what drives the
unreliability of jury reinstruction in the absence of counsel is
14 Hudson v. Jones No. 02-1586
not only counsel’s inability to prevent the dissemination of
erroneous new instructions, but also counsel’s incapacity to
respond to whatever motivated the jury to return to the court
with some confusion or misunderstanding and to contribute
to the resolution of that problem.
While the literal re-reading of the initial jury instruction
may appear to be harmless in the sense that it imparts no new
information to the jury, the jury’s desire for reinstruction or
supplemental instruction is far from inconsequential. A jury
asks for additional instructions or desires to hear the original
instructions again because its members are confused,
uncertain, internally quarreling, or because they failed to
understand the instructions the first time, possibly because of
an error or problem with the original instructions. When the
jury returns to the court without a verdict, counsel, if present,
can assess whether a reinstruction is appropriate or whether
supplemental instructions or clarifications are needed. Just as
delivering a faulty supplemental instruction to the jury can
prejudice the defendant’s trial, the failure to impart to the jury
a clarifying instruction because of a problem with the initial
instruction can be equally damaging. Additionally, counsel’s
presence is needed to protect the defendant’s rights should the
trial court reinstruct the jury with the original instructions
after one party has complained that the original instructions
were defective. Here, Hudson’s jury sent the trial judge a
note, which read: “We need the definition of aiding and
abetting and the difference between second and first degree
murder.” Joint Appendix at 594 (Trial Tr.). Defense attorney
Young, who absented himself from the courtroom without
Hudson’s permission, was not available to assess precisely
the extent of the jury’s problems with the definition of aiding
and abetting or their difficulty with the distinction between
second and first degree murder. His absence made it
impossible to challenge the trial court’s decision to reinstruct
the jury with almost the exact same language it had originally
used.

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No. 02-1586 Hudson v. Jones 15
The majority relies heavily on our 1993 opinion in United
States v. Harris, 9 F.3d 493 (6th Cir. 1993), for the
proposition that reinstructing a jury is not a critical stage of
the trial. However, Harris is not controlling, because while
the factual circumstances underlying Harris are similar to
those present here, Harris does not even discuss the Sixth
Amendment right to counsel, let alone the rule of presumed
prejudice enunciated in Cronic. In Harris, the jury sent the
court a note asking to have a written copy of the jury
instructions, a request the court granted without contacting
either of the parties. Id. at 499. The defendant asserted that
the district court erred by not giving him the opportunity to
respond to the note on the basis of Rule 43 of the Federal
Rules of Criminal Procedure, which provides that the
“defendant must be present at . . . every trial stage” except
when “the proceeding involves only a conference or hearing
on a question of law.” Fed. R. Crim. P. 43(a)(2), (b)(3). We
held that while a technical error may have existed, the
defendant was “unable to state a reasonable possibility of
prejudice that resulted from the district court’s conduct.”
Harris, 9 F.3d at 499. At no point did Harris raise an
ineffective assistance of counsel claim based upon his
attorney’s absence during the reinstruction.
Harris is inapplicable here. Facially, Harris’s
interpretation of Rule 43 does not control this case because
Rule 43 only governs the presence of the defendant during
trial and does not pertain to the defendant’s right to have
counsel present. Additionally, whereas Sixth Amendment
jurisprudence has divided the trial into critical and noncritical
stages, Rule 43 requires the presence of the defendant at all
stages of the trial, which makes a showing of prejudice even
more imperative given that a Rule 43 error can be asserted
because of a defendant’s absence at a relatively unimportant
portion of the trial.
Most significantly, Harris does not discuss the Sixth
Amendment, the Cronic rule of presumed prejudice, or the
standard for ineffective assistance of counsel fashioned in
16 Hudson v. Jones No. 02-1586
Strickland v. Washington, 466 U.S. 668 (1984), which
requires a showing of prejudice in situations such as when
counsel is absent during a noncritical portion of a criminal
proceeding. Given that Harris concerns an entirely different
area of criminal law, which does not distinguish between
noncritical and critical stages, and that the defendant in
Harris did not even raise a Sixth Amendment claim, it is an
impermissible logical leap to say that implicit in the holding
of Harris “is the conclusion that trial counsel’s absence was
not during a critical stage of the proceedings because, had the
absence occurred during a critical stage, prejudice would have
been presumed under Cronic.” Maj. Op. at 8.
Several of the cases from other circuits to which the
majority cites do not command its result. In United States v.
Morrison, 946 F.2d 484 (7th Cir. 1991), the Seventh Circuit
ruled that “the court's reading of the jury instructions (as
opposed, perhaps to a court's jury instruction conference with
counsel)” did not constitute a critical stage. Id. at 503.
However, this holding presupposes that counsel was present
to agree or to object to the precise phrasing of the instructions
before they were read. The court’s conclusion also rests on
the belief that it is unlikely that the district court will commit
an error in the actual recitation of the instructions to which the
parties have already agreed such that counsel needs to be
present to monitor for such an occurrence. The Seventh
Circuit’s conclusion implies that the jury instruction
conference is a critical stage, and defense attorney Young’s
absence during the jury’s return for further instruction
precluded the occurrence of any such conference, thus
denying Hudson the opportunity even to assess whether an
additional instruction conference was needed. In Curtis v.
Duval, 124 F.3d 1 (1st Cir. 1997), the First Circuit clearly
stated that “recalling the jury for supplementary instructions
after deliberations are underway is a critical stage of a
criminal trial” and “giving a sua sponte jury instruction
without consulting, and in the absence of, the defendant's
attorney . . . denies the defendant the assistance of counsel at
that critical stage” but did not draw any distinction between

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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.

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