Robert Lee Caver v. DENNIS M. STRAUB, Warden

*The Honorable Joseph M. Hood, United States District Judge for the
Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0410P (6th Cir.)
File Name: 03a0410p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ROBERT LEE CAVER,
Petitioner-Appellee,
v.
DENNIS M. STRAUB, Warden,
Respondent-Appellant.
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No. 01-2649
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-70903—Arthur J. Tarnow, District Judge.
Argued: May 2, 2003
Decided and Filed: November 19, 2003
Before: MOORE and ROGERS, Circuit Judges; HOOD,
District Judge.*
_________________
COUNSEL
ARGUED: Debra M. Gagliardi, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
2 Caver v. Straub No. 01-2649
Elizabeth L. Jacobs, Detroit, Michigan, for Appellee.
ON BRIEF: Debra M. Gagliardi, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
Elizabeth L. Jacobs, Detroit, Michigan, for Appellee.
HOOD, D. J., delivered the opinion of the court, in which
MOORE, J., joined. ROGERS, J. (pp. 22-23), delivered a
separate concurring opinion.
_________________
OPINION
_________________
HOOD, District Judge. Robert Lee Caver was convicted
for violating Michigan Compiled Laws § 750.89, assault with
intent to rob being armed. After exhausting his direct and
state-collateral appeals, Caver filed a federal petition for a
writ of habeas corpus, alleging the ineffectiveness of his trial
and appellate counsel. The district court below found that
Caver had demonstrated cause and prejudice sufficient to
excuse the procedural default of his ineffective assistance of
trial counsel claim by demonstrating the ineffectiveness of his
appellate counsel. Accordingly, the district court granted
Caver’s petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. The Michigan Attorney General appeals from the
district court decision, arguing that (1) the ineffective
assistance of appellate counsel claim was procedurally
defaulted, and (2) assuming that the ineffective assistance of
appellate counsel claim was not procedurally defaulted, the
district court erred in finding that the state collateral courts
had unreasonably applied clearly established federal law. For
the reasons that follow, we affirm.
I. Factual and Procedural History
On October 1, 1992, Robert Lee Caver was convicted in the
Detroit Recorder’s Court of assault with intent to commit
armed robbery and two counts of attempted assault with

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No. 01-2649 Caver v. Straub 3
intent to commit armed robbery. Caver was prosecuted for
entering and looting a local drug house with two other men
while impersonating federal law enforcement agents. Caver
is currently imprisoned only for assault with intent to commit
armed robbery, as he has completed his sentences on the
remaining convictions.
Caver directly appealed his convictions, asserting that the
trial court erred in instructing the jury and that there was
insufficient evidence regarding assault to support the verdict.
The Michigan Court of Appeals affirmed Caver’s convictions.
Caver then filed a delayed, pro se application for leave to
appeal to the Michigan Supreme Court. Caver’s application
reasserted the earlier-alleged errors plus two new issues. One
claim asserted that Caver’s appellate counsel, Neil Leithauser,
had failed to investigate certain allegedly meritorious issues.
While he did generally state that he had wished to pursue an
ineffective assistance of trial counsel claim, Caver did not
allege that Leithauser failed to investigate or pursue the
absence of Caver’s trial counsel, Samuel Simon, during the
court’s response to the jury note or during the subsequent jury
re-instruction. The Michigan Supreme Court denied Caver’s
delayed application for leave to appeal.
Next, Caver filed a motion for relief from judgment in the
trial court, alleging, inter alia, the ineffectiveness of his trial
and appellate counsel. The motion referred to two instances
of trial counsel ineffectiveness relevant to this appeal:
Defendant Caver’s Trial Counsel ...
(9) Failed to be present during Open Court proceeding’s
[sic] (during Jury Instructions), Counsel wasn’t present
and Defendant was placed back in [sic] bullpen, and
Defendant nor Counsel [sic] present during open court
proceedings of his trial;
...
4 Caver v. Straub No. 01-2649
1“Subchapter 6.500 of the Michigan Court Rules establishes the
procedures for pursuing post-appeal relief from criminal convictions. The
subchapter is the exclusive means to challenge a conviction in Michigan
once a defendant has exhausted the normal appellate process.” People v.
Reed, 499 N .W.2d 441, 443 n.1 (Mich. Ct. App. 1993 ), aff’d 535 N.W.2d
496 (1995). Michigan Court Rule 6.508(D) limits the co urt’s ability to
grant relief. See M.C.R. 6.508(D ). The rule reads, in p ertinent part,
The court may not grant relief to the defendant if the motion:
...
(3) alleges grounds for relief, other than jurisdictional defects,
which could have been raised on appeal from the conviction and
sentence or in a prior motion under this subchapter, unless the
defendant demonstrates
(a) good cause for failure to raise such grounds on
appeal or in the prior motion, and
(b) actual prejudice from the alleged irregularities that
supp ort the claim for relief.
Id.
(11) Failed to remain with Defendant immediately after
jury retired to deliberate, where within minutes the Jury
sent a note requesting to see evidence etc.. [sic] and
Counsel was not present....
Caver based his claim of ineffective appellate counsel on his
appellate attorney’s failure to raise these issues of ineffective
trial counsel. The trial court denied Caver’s motion, finding
that Caver had not demonstrated the “good cause” or
prejudice required under M.C.R. 6.508(D)1 to excuse his
failure to present the issues on his direct appeal. The court
also concluded that Caver’s ineffective assistance of trial
counsel claim was without merit and could not satisfy the
“good cause” requirement of M.C.R. 6.508(D)(3) “because
appellate counsel is not required to raise every non-frivolous
issue on appeal.” Jones v. Barnes, 463 U.S. 795 (1983). The
Michigan Court of Appeal denied Caver’s delayed appeal and
his motion for rehearing, which was, in substance, identical
to his brief before the district court. The appellate court
concluded that Caver had failed to meet the burden of
establishing entitlement to relief under M.C.R. 6.508(D).

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No. 01-2649 Caver v. Straub 5
2For example, Caver did argue tha t “defendant was de nied his Sixth
Amendm ent right to effective assistance of appellate counsel when his
attorne y failed to adeq uately and compe tently represent him.”
Caver then filed an application for leave to appeal to the
Michigan Supreme Court. This application was notably
different from Caver’s earlier briefs in that Caver separated
the presentation of his ineffective assistance of trial counsel
claims and his ineffective assistance of appellate counsel
claims. In treating his trial counsel claims, Caver again
presented paragraphs nine and eleven, which alleged the
absence of trial counsel when the court received a note back
from the jury and again when the court went on to re-instruct
the jury. Caver’s treatment of his appellate counsel claims,
however differed from his earlier applications. In Caver’s
application to the Michigan Supreme Court, unlike his earlier
claims, he failed to argue that appellate counsel was
ineffective for failing to present the ineffectiveness of Caver’s
trial counsel for being absent during critical stages of the trial.
Instead, Caver asserted that appellate counsel was ineffective
in not alleging trial counsel’s ineffectiveness in failing to
object to certain testimony, failing to cross-examine
witnesses, and failing to investigate the illegality of Caver’s
arrest and his alibi. Caver also asserted appellate counsel’s
ineffectiveness in failing to assert error respecting the trial
court’s refusal to allow the testimony of res gestae witnesses.
Caver’s application did also provide general statements of his
appellate counsel’s ineffectiveness,2 but these general
statements appear to be in connection with his specifically-
alleged instances of appellate counsel’s ineffectiveness. The
Michigan Supreme Court denied Caver’s application for leave
to appeal, concluding that Caver had failed to meet his burden
under M.C.R. 6.508(D).
On February 17, 2000, Caver filed a petition for a writ of
habeas corpus with the United States District Court for the
Eastern District of Michigan, alleging ineffective assistance
of trial and appellate counsel, among other constitutional
6 Caver v. Straub No. 01-2649
errors. After an evidentiary hearing, the district court granted
Caver’s petition. The district court found that Caver’s
appellate counsel had been ineffective in failing to raise the
ineffectiveness of Caver’s trial counsel on direct appeal, thus
establishing both a separate constitutional defect and cause
and prejudice sufficient to excuse the procedural default of
Caver’s claim of ineffective assistance of trial counsel. The
Attorney General now appeals the decision of the district
court.
II. Standard of Review
Appellate courts, in reviewing federal habeas corpus
proceedings, examine the district court's legal conclusions de
novo and its factual findings under a "clearly erroneous"
standard. Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir. 1999).
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) was enacted on April 24, 1996. Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, 110 Stat. 1214 (1996) (relevant portions codified as
amended at 28 U.S.C. § 2254). Caver filed his petition for
relief on February 17, 2000. Caver’s petition, therefore, is
governed by 28 U.S.C. § 2254(d)(1), as amended by AEDPA.
See Williams v. Taylor, 529 U.S. 362, 402 (2000). Under the
amended statute, a writ of habeas corpus
may issue only if ... the state-court adjudication resulted
in a decision that either (1) “was contrary to ... clearly
established Federal law, as determined by the Supreme
Court of the United States,” or (2) “involved an
unreasonable application of ... clearly established Federal
law, as determined by the Supreme Court of the United
States.
Id. at 412 (quoting 28 U.S.C. § 2254(d)(1)).

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No. 01-2649 Caver v. Straub 7
III. Discussion
A. The Court Need Not Reach Whether or Not Caver
Procedurally Defaulted His Ineffective Assistance of
Appellate Counsel Claims Because the State Failed to
Raise the Issue in Proceedings Before the District
Court
The Attorney General asserts that Caver did not fairly
present, in the state court collateral proceeding, the ineffective
assistance of appellate counsel claim upon which the district
court relied in granting Caver’s petition and that the claim
was, thus, procedurally defaulted. It is true that before
seeking federal habeas corpus relief, a state prisoner must
exhaust his available state remedies by fairly presenting all
claims to the state courts. 28 U.S.C. § 2254(b); see Hannah
v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995). The
exhaustion requirement is satisfied after the petitioner fairly
presents all claims to the highest court in the state in which
the petitioner was convicted, thus giving it a fair and full
opportunity to rule on his claims. See Rust v. Zent, 17 F.3d
155, 160 (6th Cir. 1994). The petitioner bears the burden of
proving that he has exhausted these remedies. See id.
Caver, however, counters the Attorney General’s
procedural default argument by noting that issues “raised for
the first time on appeal are not properly before the court.”
J.C. Wyckoff & Assocs., Inc. v. Standard Fire Ins. Co., 936
F.2d 1474, 1488 (6th Cir. 1991). A review of the record
shows that Respondent did not raise the issue of default
before the district court, instead attempting to meet the
ineffective assistance of appellate counsel arguments on the
merits of the issue. Accordingly, the Court need not address
Caver’s alleged procedural default because Respondent did
not, in fact, raise the issue in the proceedings before the
district court.
8 Caver v. Straub No. 01-2649
B. Caver Did Not Procedurally Default His Ineffective
Assistance of Trial Counsel Claim
The Attorney General also argues that Caver procedurally
defaulted his trial counsel claim. As described above,
exhaustion occurs where a petitioner gives the state courts a
fair and full opportunity to rule on his claims by fairly
presenting all claims to the highest court in the state in which
the petitioner was convicted. See Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994). The exhaustion requirement is also
satisfied if it is clear that a claim is procedurally barred under
state law. Gray v. Netherland, 518 U.S. 152, 161-62 (1996).
In such a case, however, the habeas petitioner must overcome
the procedural default, an independent and adequate state-law
ground for the conviction and sentence that prevents federal
habeas corpus review, by demonstrating cause and prejudice
for the default. Id. at 162. This court has previously
announced a four part test to determine whether a claim has
been procedurally defaulted:
First, the court must determine that there is a state
procedural rule that is applicable to the petitioner's claim
and that the petitioner failed to comply with the rule....
Second, the court must decide whether the state courts
actually enforced the state procedural sanction. ... Third,
the court must decide whether the state procedural
forfeiture is an "adequate and independent" state ground
on which the state can rely to foreclose review of a
federal constitutional claim.... [Fourth,] the petitioner
must demonstrate under [Wainwright v.] Sykes, [433 U.S.
72 (1977)] that there was "cause" for him not to follow
the procedural rule and that he was actually prejudiced
by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
M.C.R. 6.508(D)(3) governs the procedures for collateral
appeals and denies relief if the defendant alleges claims that
could have been raised in the direct appeal from the

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No. 01-2649 Caver v. Straub 9
3Even if he had not, we believe that he has demonstrated by virtue of
ineffective assistance of his appellate counsel, as discussed below, “that
there was ‘cause’ for him not to follow the procedural rule and that he was
actually prejudiced by the alleged constitutional error.” Ma upin v. Sm ith,
785 F.2d 135, 138 (6th Cir. 1986) (citing Sykes, 433 U.S. 72 ).
For this reaso n, the Court also rejects the Attorney General’s more
nuanced argum ent; that is, that C aver in his state co llateral proceedings
did not state that trial counsel was absent during the actual re-instruction
of the jury, only that counsel was absent when the trial judge received a
note from the jury. Looking again to the less stringent standards and
active interpretation that are afforded to the filings of pro se litigants, we
are satisfied that Caver’s reference to trial counsel’s absence during
conviction. See People v. Jackson, 633 N.W.2d 825 (Mich.
2001). Specifically, the Attorney General asserts that the
issue of denial of counsel during a “critical stage” of the trial
was not presented to the state courts.
Ultimately, then, the issue is whether Caver fairly presented
the claim to the Michigan courts in his one and only motion
for relief from judgment. Fair presentation of an issue
requires that a petitioner give state courts a full opportunity to
resolve any constitutional issues by invoking “one complete
round” of the state’s appellate review system. O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (finding that “one
complete round” includes discretionary appeal to state
supreme court). Fair presentation also requires that “the same
claim under the same theory be presented” for the state
court’s consideration. Palette v. Foltz, 824 F.2d 494, 497 (6th
Cir. 1987). Thus, to the extent that an ineffective assistance
of counsel claim is based upon a different allegedly
ineffective action than the claim presented to the state courts,
the claim has not been fairly presented to the state courts. Id.
Certainly, the issue was not raised in his direct appeal to the
Michigan Court of Appeals. He did, however, raise the issue
in his pro se appeal to the Michigan Supreme Court, asserting
that he had wanted to present an ineffective assistance of trial
counsel claim in his intermediate appeal, but that appellate
counsel had denied him that opportunity.3 Thus, the Attorney
10 Caver v. Straub No. 01-2649
receipt of the note is sufficient to cover the subsequent events leading up
to and including jury re-instruction. Urbina v. Thoms, 270 F.3d 292, 295
(6th C ir. 200 1).
4In this sense, the Attorney General objects to the district court’s
findings respecting both the performance and prejud ice components of
Caver’s ineffective assistance claim. See Strickland v. Wa shing ton, 466
U.S. 668 (1984).
General’s argument in this regard must fail. Given the less
stringent standards and active interpretation that are afforded
to the filings of pro se litigants, Urbina v. Thoms, 270 F.3d
292, 295 (6th Cir. 2001), these aspects of Caver’s application
support a finding that Caver “fairly presented” the trial
counsel ineffectiveness claim.
C. The District Court Did Not Err in Concluding That
the State Court Unreasonably Applied Clearly
Established Federal Law
The Attorney General makes two arguments in support of
the contention that the district court erred by finding that the
state court unreasonably applied clearly established federal
law. First, the Attorney General maintains that the state court
reasonably applied clearly established federal law in
determining that Caver’s appellate counsel did not fall below
the required standard of professional competence. Next, the
Attorney General asserts that the district court erroneously
presumed prejudice under United States v. Cronic, 466 U.S.
648 (1984), instead of conducting an individualized inquiry.4
As noted above, a habeas petition may issue only if the
state court decision is contrary to or an unreasonable
application of clearly established federal law as determined
by the Supreme Court of the United States. 28 U.S.C.
§ 2254(d). The phrase “clearly established federal law, as
determined by the Supreme Court of the United States”
“refers to the holdings, as opposed to the dicta” of the
Supreme Court. Williams v. Taylor, 529 U.S. 362, 412

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No. 01-2649 Caver v. Straub 11
(2000). As the Supreme Court has noted, “[i]t is past
question that the rule set forth in Strickland qualifies as
‘clearly established Federal law’” for ineffective assistance of
counsel claims. Id. at 391. Under the oft-stated Strickland
v. Washington test, to prevail on an ineffective assistance of
counsel claim, a petitioner must demonstrate that
(1) “counsel’s representation fell below an objective standard
of reasonableness,” and (2) “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984). For Caver to succeed,
however:
[H]e must do more than show that he would have
satisfied Strickland’s test ..., because under §2254(d)(1),
it is not enough to convince a federal habeas court that,
in its independent judgment, the state-court decision
applied Strickland incorrectly. Rather, he must show that
the [state court] applied Strickland to the facts of his case
in an objectively unreasonable manner.
Bell v. Cone, 535 U.S. 685, 698-99 (2002) (citations omitted).
1. Strickland’s Performance Component
The Supreme Court has made clear that in reviewing a
lawyer’s performance, a court’s “scrutiny . . . must be highly
deferential.” Strickland, 466 U.S. at 689. A fair assessment of
attorney performance requires that every effort be made “to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the time.”
Id. In relation to appellate counsel, the Strickland
performance standard does not require an attorney to raise
every non-frivolous issue on appeal. See Jones v. Barnes, 463
U.S. 745, 751 (1983). Indeed, the process of “‘winnowing out
weaker arguments on appeal and focusing on’ those more
likely to prevail ... is the hallmark of effective appellate
advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986)
12 Caver v. Straub No. 01-2649
5This is not surprising, given that some courts have suggested that the
Strickland performance and prejudice prongs tend to blur when
considering the performance of appellate counsel, as the prejudice inquiry
will generally inform whethe r app ellate counsel met the standard of
professional competence. See United States v. Cook, 45 F.3d 388, 395
(10th Cir. 1995); Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
(quoting Barnes, 463 U.S. at 751-752). As the Supreme
Court has recently observed, it is difficult to demonstrate that
an appellate attorney has violated the performance prong
where the attorney presents one argument on appeal rather
than another. Smith v. Robbins, 528 U.S. 259, 289 (2002). In
such cases, the petitioner must demonstrate that the issue not
presented “was clearly stronger than issues that counsel did
present.” Id. at 289.
In the instant case, there can be little doubt but that the
omitted issue - trial counsel’s alleged absence during jury re-
instruction - was much stronger than the issues Caver’s
appellate counsel presented.5 As Caver notes, the first issue
presented to the Michigan courts on appeal (whether the court
erred in its aiding and abetting instruction) was subject to
“plain error” review - a highly deferential standard, to put it
mildly. Moreover, the second argument presented on direct
appeal, the sufficiency of the evidence, was dependent upon
the success of the first issue. (Absent liability as an
aider/abettor, there could be no evidence to support a finding
of the requisite intent.)
In contrast, because re-instruction of the jury is a critical
stage of a proceeding, see discussion infra Part III.C.2, Caver
would have had a far better chance of succeeding on his
ineffective assistance claim. Indeed, the largest obstacle to
such a claim would have been the vagueness of the trial
record with regard to trial counsel’s presence or absence
during the actual re-instruction of the jury. See discussion
infra Part III.D. While such second-guessing of appellate
counsel’s evaluation of the facts may seem like the forbidden
product of the “distorting effect[] of hindsight,” even

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No. 01-2649 Caver v. Straub 13
6The only explanation for appellate counsel’s failure to raise the
ineffective assistance of counsel claim may b e found in the transcript of
the evidentiary hea ring at the district co urt. Petitioner’s counsel broached
the subject of trial counsel’s presence during the jury re-instruction with
appellate counsel as follows:
Q. ...[C]an you tell us why you d id not raise the denial of the
right to counsel during the supplemental instruction issue?
A. W ell, you have to be more specific.
Q. There came a time when the jury wanted to be instructed on
certain elements of the offense after they had deliberated.
A. Uh-hum.
Q. And the transcript reflects that Mr. Caver’s attorney was not
present during that time period.
A. I don’t see the merit in the issue, I gue ss would be...
At that point, Petitioner’s counsel interrupted the response by stating, “I
have no further questions.” The Attorney G eneral, prom pted by the court,
stated, “I have no questions for this witness.” Accordingly, we are left to
wonder why Petitioner’s appellate counsel did not pursue this claim on
direct appeal - whether because appellate counsel did not appreciate the
merit of the claim or because he understood that Petitioner’s counsel was
prese nt. Notwithstanding Petitioner’s counsel’s interruption of the
response, the state was left with an opportunity to explore the reasons for
his failure to pursue the claim, an opportunity which the Attorney General
permitted to slip away. As further discussed infra, at footnote 10, we are
concerned with the state’s failure to take up its residual burden of
rebutting that evidence presented on behalf of the petitioner when it was
necessary to do so.
assuming that counsel was absent only for the receipt of the
jury note the resulting argument would still appear much
stronger than a sufficiency of the evidence claim.6
2. Strickland’s Prejudice Component
Having determined that the representation of Caver’s
appellate counsel fell below an objectively reasonable
14 Caver v. Straub No. 01-2649
standard, we must assess whether this performance prejudiced
Caver. The question presented here is whether an appellate
counsel prejudices a client where the attorney fails to raise on
appeal a claim that the trial counsel’s representation was per
se prejudicial because the trial counsel was absent during a
critical stage of the proceedings, namely jury re-instruction.
We answer in the affirmative, because but for the appellate
counsel’s ineffectiveness, there is a reasonable probability
that the result of the state appeal may have been different.
On the same day that the Supreme Court in Strickland
outlined the requirements for an ineffective assistance of
counsel claim, it also determined that where counsel is absent
at a critical stage of a criminal proceeding the trial will be
deemed unfair and prejudice under Strickland presumed.
United States v. Cronic, 466 U.S. 648, 659 & n.26 (1984).
The Attorney General challenges the district court’s
conclusion that jury re-instruction is a “critical stage” such
that prejudice is presumed and no individual analysis is
required.
A critical stage of a criminal proceeding is “a step of a
criminal proceeding, such as arraignment, that h[olds]
significant consequences for the accused.” Bell v. Cone, 535
U.S. 685, 695-96 (2002). Where counsel is absent or denied
in such instances, “the likelihood that the verdict is unreliable
is so high that a case-by-case inquiry [of prejudice to the
defendant] is unnecessary.” Mickens v. Taylor, 535 U.S. 162,
166 (2002) (citing Cronic, 466 U.S. at 658-59 & 659 n.26).
The “individual inquiry into whether counsel's inadequate
performance undermined the reliability of the verdict” is
forgone only in such cases. Id.
Is jury re-instruction a “critical stage” under Cronic? While
the Supreme Court has not expressly considered whether jury
reinstruction, as it is understood in this matter, is a critical
stage, this court recently determined - in a decision squarely
on-point and founded on the U.S. Supreme Court’s decision

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No. 01-2649 Caver v. Straub 15
7Anticipating concerns about whether or not this properly constitutes
“clearly established Federal law, as determined by the Supreme Court of
the United States,” we note that the Cronic court has only carved out a
broad rule, a rule that must be applied in the many factually distinct
situations that will come before the lower courts. 28 U.S.C. § 2254(d)(1).
“[R]ules of law may be sufficiently clear for habeas purposes even when
they are expressed in terms of a generalized standard rather than as a
bright-line rule.” Williams v. Taylor, 529 U.S. 362 , 382 (2000).
Accordingly, such a rule o f law can “tolerate a num ber o f specific
applications without saying that those applications themselves create a
new rule....” Id. (quotation omitted). The Supreme Court has rejected a
requirement that the facts of prior cases be “fundamentally similar” or
“materially similar” in order to constitute “clearly established law.” Hope
v. Pelzer, 536 U.S. 730, 741 (2002) (fair warning of unconstitutional
conduct required where o fficials seek qualified immunity from suit in
cases under 42 U.S.C. § 1983). For this reason, we believe that our focus
on the absence per se of trial counsel during jury reinstruction makes this
a “tolerable ap plication” of Cronic within the requirements of
§ 2254 (d)(1).
in Cronic - that it is.7 French v. Jones, 332 F.3d 430 (6th Cir.
2003). On remand from the Supreme Court, which had
vacated the original appellate opinion in French and
remanded for reconsideration in light of the Supreme Court’s
decision in Bell v. Cone, 535 U.S. 685 (2002), this court
reiterated its previous decision holding that jury re-instruction
was indeed a “critical stage” as described in Cronic and that
prejudice could be presumed. French, 332 F.3d at 438-39.
Again, we note that 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."
French, 332 F.3d at 436 (quoting United States v. Cronic, 466
U.S. 648, 659 n.25 (1984)). This is to say, under Cronic, that
if Petitioner’s trial counsel was, indeed, absent during the re-
instruction, a structural error occurred in the trial court
proceeding, and either relief from judgment or a writ of
16 Caver v. Straub No. 01-2649
8W e note that the panel in French v. Jones, while holding that jury
re-instruction is a critical stage and that prejudice may be presum ed if trial
counsel is absent, did not place any limits on what types of jury re-
instruction would be considered “critical.” Frenc h v. Jones, 332 F.3d
430, 438-39 (6th Cir. 2003). As the re-instruction in the instant matter
involved new and supplemental information conveyed to the jury, similar
to that jury re-instruction in French, we express no opinion on whether or
not a jury re-instruction that does not convey new and supplemental
information is similarly a “critical” stage in a trial.
habeas corpus could be properly granted on this ground.8
Any conclusion otherwise would be an unreasonable
application of clearly established federal law as stated in
Cronic.
Because prejudice is presumed and because, as outlined
above, appellate counsel was ineffective for failing to raise
the absence of trial counsel issue, the district court was
correct in finding that the state court’s application of
Strickland (that is, the state court’s conclusion that appellate
counsel was not ineffective) was an unreasonable application
of clearly established federal law.
D. The District Court’s Factual Finding That Caver’s
Trial Attorney Was Absent During Jury Re-
instruction Was Not Clearly Erroneous
The Attorney General challenges not only the district
court’s legal conclusions - conclusions which we validate
above - but also the district court’s central factual
determination standing as the linchpin of Caver’s habeas
petition. That determination is the district court’s finding that
Caver’s trial counsel was absent during jury re-instruction.
The record, the Attorney General argues, is devoid of support
for such a finding.
Our review of the district court’s factual findings is highly
deferential. We start from the premise that a district court’s
factual findings in a habeas proceeding are reviewed for clear

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No. 01-2649 Caver v. Straub 17
9The entire trial court opinion for the state collateral proceed ing
reads:
Defendant has filed a Motion of Relief from Judgment, in
which he raises several issues that were not raised in his prior
app eal. Upon review of the M otion, this Court is satisfied that
the defendant has not shown “go od cause” for failure to raise
these issues in his prior appeal, nor actual prejud ice from these
alleged errors. MCR 6.50 8(D)(3).
Defendant’s claim o f ineffective assistance of appellate
counsel does not satisfy the “good cause” requirem ent because
app ellate counsel is not required to raise every non-frivolous
issue on ap peal. Jones v. Barnes, 463 U.S. 795; 103 S. Ct. 3308;
77 L. Ed. 2d 987 (1983). Defendant’s Mo tion for Relief from
Judgment is hereby Denied.
error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999).
“‘Clear error’ occurs only when [the panel is] left with the
definite and firm conviction that a mistake has been
committed. If there are two permissible views of the evidence,
the factfinder's choice between them cannot be clearly
erroneous.” United States v. Kellams, 26 F.3d 646, 648 (6th
Cir. 1994). We are also mindful that in a habeas proceeding
the petitioner “has the burden of establishing his right to
federal habeas relief and of proving all facts necessary to
show a constitutional violation.” Romine v. Head, 253 F.3d
1349, 1357 (11th Cir. 2001). Thus, the panel must determine
whether or not the district court erred in determining that
petitioner met the burden of establishing his right to federal
habeas relief and of proving all facts necessary to show a
constitutional violation on the record presented.
The collateral trial court opinion was the last reasoned
opinion before the district court, and the opinion did not
contain any findings of fact.9 The district court held an
evidentiary hearing, in which the petitioner and both trial and
appellate counsel were questioned. The petitioner was not
asked by his counsel about his claim that his trial attorney
was not present when the jury was re-instructed. For reasons
18 Caver v. Straub No. 01-2649
that are unclear, trial counsel was not questioned respecting
his alleged absence during jury re-instruction. Without any
testimony on the matter, the district court was left with the
following excerpt of the trial record:
(Back on the record at about 3:59 p.m.)
THE COURT: I’m not really certain about this.
I’m not quite certain about what this note from the jury
means. It says definitions of Assault, and False
Pretenses. And I’m not quite certain, so I’m going to ask
them if they would be kind enough to write down exactly
what is on the verdict form.
(Brief pause.)
THE COURT: Gentlemen, I have written a note.
Where is Mr. Simon?
[Attorney for Caver’s co-defendant]: I just asked the
same question.
THE COURT: Nevertheless, I am writing this note:
“Dear Jurors, I don’t quite understand your question.
Would you please mark on the verdict form the exact
charge or charges that you want”.
And I’m going to send them a form in there so they can
write on here exactly what they want to hear.
After this exchange, the attorney for Caver’s co-defendant
stated that he believed that the court should define assault and
false pretenses, rather than making an inquiry. A note was
then sent to the jury at 4:03 p.m. The court reconvened from
4:06 p.m. to 4:08 p.m. to clarify that the juror requests were
required to be in writing. From 4:19 p.m. to 4:27 p.m. the
trial court responded to the jury’s request and re-read the

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No. 01-2649 Caver v. Straub 19
requested instruction. After the jury was excused to
deliberate, Mr. Ernst, counsel for one of Caver’s co-
defendants, objected to the court’s aiding and abetting re-
instruction, and the court overruled the objection. The trial
transcript does not reflect Mr. Simon’s presence in the
courtroom from the time of the court’s initial question
“Where is Mr. Simon?” to the conclusion of the proceeding
that day at 4:29 p.m.
The Attorney General argues that the judge’s question,
“Where is Mr. Simon?” does not demonstrate that trial
counsel was not present at the subsequent re-instruction, but
merely reflects his absence at the time of the judge’s
statement in response to the jury’s question. The Attorney
General also cites the fact that the court went on and off the
record twice after the judge’s question, arguing that “it must
be presumed that the judge would have pursued [counsel’s
absence] if counsel had remained absent.” Therefore, the
Attorney General maintains, Caver has not met his burden of
proof on this point.
We disagree. While we must find clear error where the
record is thoroughly devoid of evidence to support a district
court’s finding, a district court’s factual finding may survive
appellate scrutiny where there is some supporting evidence.
Naturally, the trial court judge’s inquiry, “Where is Mr.
Simon?”, raises the question of the trial attorney’s
whereabouts, particularly when coupled with the subsequent
concern expressed by Caver’s co-defendant’s trial counsel.
Thus, it can be understood to confirm Simon’s absence from
the courtroom at the time of the statement. There is no
indication that Simon returned to the courtroom in the period
of time after the statement was made and before the close of
proceedings for the day, including the re-instruction of the
jury. This interpretation of the evidence is buttressed by the
fact that Simon neither commented on nor objected to the
proceedings so as to appear in the record in the nearly thirty
minute period following the trial judge’s query about Simon’s
whereabouts. Of course, neither is there any further
20 Caver v. Straub No. 01-2649
10Even though we ha ve de termined that the district jud ge’s
determination to grant Petitioner a writ of habeas corpus based on the
record was not clearly erroneous, we remark that it would have been
helpful for either counsel or the court to have inquired of Petitioner’s trial
counsel regarding his presence or absence at the jury re-instruction during
the evidentiary hearing. Nonetheless, their failure to do so does not mean
that the record is therefore devoid of any evidence regarding S imon’s
presence or absence. Rather, it leaves a suggestive record by which
Petitioner has borne his burden of proof in the eyes of the district court
and as described above. Such a sparse record may be p roperly construed
in this manner, considering the critical nature of the re-instruction of the
jury under Cronic and French and in the absence of further evidence of
Simo n’s presence, particularly in light of the state’s op portunity to elicit
testimony from Simon at the evidentiary hearing before the district court.
Our determination is bolstered when considered alongside those decisions
that impugn the state’s care for a criminal defendant’s constitutional rights
where the record is silent regarding the d etails of certain proceedings.
See, e.g., Boykin v. Alabama, 395 U .S. 238 (1969 ) (reversible error where
guilty plea accepted but record does not disclose that a plea was entered
voluntarily and knowingly); Carnley v. Cochran, 369 U.S. 506, 516
(1962) (holding that “[p ]resum ing waiver [of the Sixth Amendm ent right
to counsel] from a silent record is impermissible. The record must show,
or there must be an allegation and evidence which show, that an accused
was offered counsel but intelligently and understandingly rejected the
offer. Anything less is not waiver.”). This is not to say that we are
shifting the burden to be borne by a habeas petitioner by our decision
today. Rather, we are concerned about the state’s failure to take up its
residual burden of rebutting that evidence presented on behalf of the
petitioner when it was necessary to do so.
indication that Simon was not present at the re-instruction of
the jury, such as another inquiry into or an explanation
offered for his absence. This is to say that the record is
susceptible to two permissible interpretations -- either
Simon’s presence was not remarked upon or his continued
absence was not remarked upon by those present. Thus, the
district court judge could not have committed clear error in
determining that petitioner’s trial counsel was absent, and we
must defer to the interpretation adopted by the district court
judge in his decision to grant the request for a writ of habeas
corpus.10

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No. 01-2649 Caver v. Straub 21
IV. Conclusion
Caver’s ineffective assistance of appellate counsel claim
was not procedurally defaulted, and because jury re-
instruction is a “critical stage” of a criminal proceeding, the
district court properly presumed prejudice under Cronic.
Further, the district court’s factual finding that Caver’s trial
counsel was absent during jury re-instruction is supported by
the record and, thus, not clearly erroneous. Accordingly, the
decision of the district court is AFFIRMED.
22 Caver v. Straub No. 01-2649
___________________
CONCURRENCE
___________________
ROGERS, Circuit Judge, concurring.
I concur in the result, and in the majority opinion to the
extent that it does not preclude a future panel from upholding
as reasonable, under the deferential AEDPA standard, a
reasoned state court opinion to the effect that a jury
reinstruction might not amount to a critical stage under the
reasoning of United States v. Cronic, 466 U.S. 648, 659 &
n.25 (1984).
Several factors make this a poor case in which to preclude
such a holding in the future. First, only the most generous
accommodation accorded pro se filings permits us even to
conclude that petitioner adequately pursued in the state courts
the issue of counsel’s absence at jury reinstruction. Second,
the state court rejected the argument in the most cursory
terms, leaving us with the slimmest of indications of its
reasoning on the issue. Third, the district court’s factual
finding that counsel was indeed absent at the time of jury
reinstruction can be upheld only on the basis of a generous
application of deference under the court’s clearly erroneous
standard, as the record is remarkably opaque on the question.
Fourth, it is not even clear that the state in its brief to this
court did not waive any argument that jury reinstruction is a
critical stage under Cronic. Given this state of the record, I
concur in the majority’s result.
This case should not be read, however, to resolve the issue
of whether it is ever possible to uphold, under the AEDPA
standard, a reasoned state court holding that a defendant was
not prejudiced by the absence of counsel at jury reinstruction.
French v. Jones, 332 F.3d 430 (6th Cir. 2003), relied upon by
the majority, does not necessarily require a negative answer
to this question, because the state court decision in that case

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No. 01-2649 Caver v. Straub 23
assumed that the jury reinstruction at issue was a critical
stage. French, 332 F.3d at 436. Our holding in French thus
does not require the conclusion that a state court could not
reasonably (even if erroneously in our view) hold the
contrary. Moreover, Supreme Court cases dealing with jury
reinstruction do not require a negative answer, as those cases
could reasonably be read to state a rule that is not of
constitutional stature. Rogers v. United States, 422 U.S. 35,
39-40 (1975) (analyzing giving of supplemental instructions
to jury when defendant’s counsel was absent as violation of
Rule 43 of Federal Rules of Criminal Procedure); Shields v.
United States, 273 U.S. 583, 588-89 (1927) (observing that
rule of orderly conduct of jury trial entitles defendant to be
present from time jury is impaneled until it renders its
verdict); cf. Rushen v. Spain, 464 U.S. 114, 117 n.2 (1983)
(declining to decide whether trial judge’s ex parte
communication with juror was error of constitutional
dimension). But see Rushen, 464 U.S. at 118 (arguably citing
Rogers as case involving constitutional deprivation).
To be sure, the Supreme Court has indicated that a “critical
stage” denotes “a step of a criminal proceeding, such as an
arraignment, that h[olds] significant consequences for the
accused.” Bell v.Cone, 535 U.S. 685, 695-96 (2002). If we
assume that responding to a jury request to amplify a jury
instruction inherently “holds significant consequences for the
accused, ” then it would arguably be unreasonable for a state
court to conclude, where the defendant’s attorney was absent
at that time, that the Constitution did not require a new trial.
I would leave resolution of the issue, however, to a case in
which the state court more clearly made such a determination,
and where the state more clearly defended it.

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