United States v. 2007-01-05 | 05-16024 | FRANTZ VSCHRIRO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 KARL ADOLPH FRANTZ, No. 05-16024
Petitioner-Appellant, D.C. No.
v. CV-04-00135-WDB
 District of Arizona,HERBERT HAZEY; DORA B. SCHRIRO, TucsonDirector,
Respondents-Appellees. ORDER

Filed January 5, 2007
Before: Mary M. Schroeder, Chief Judge.
ORDER
Pursuant to 18 U.S.C. § 3006A(a)(2)(B), we order the
appointment of counsel to serve as amicus curiae counsel in
support of inmate Karl Adolph Frantz. See Weygandt v. Look,
718 F.2d 952, 954 (9th Cir. 1983) (per curiam).
Accordingly, the Clerk shall serve a copy by phone and
facsimile of this Order on Jon M. Sands, Federal Public
Defender, 850 West Adams Street, Suite 201, Phoenix, Ari-
zona 85007, who will locate suitable counsel able to give this
matter immediate attention in light of the exigent nature occa-
sioned by the en banc proceedings. The district court shall
provide the Clerk of this Court with the name and address of
appointed counsel by facsimile transmission (FAX: (415)
556-6228) within seven days of locating counsel. Counsel
shall be appointed under the Criminal Justice Act.
On the merits of his petition for habeas relief, Frantz
alleges that his inability to participate personally in a bench
267

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conference regarding the jury’s request to hear a tape of a 911
telephone call violated his Sixth Amendment right of self-
representation under McKaskle v. Wiggins, 465 U.S. 168
(1984). The Arizona Court of Appeals disposed of petitioner’s
claim on harmless error grounds after assuming a constitu-
tional violation occurred. Yet, the Supreme Court has con-
strued a violation of the Sixth Amendment right of self-
representation as a structural defect not susceptible to harm-
less error review. Id. at 177 n.8.
We order the parties to brief the following issues:
(1) (a) When a state court utilizes a legal test
contrary to that endorsed by the Supreme
Court, may we affirm the denial of federal
habeas relief if the ultimate decision of
the state court (but not its reasoning) is
consistent with precedent of the Supreme
Court? See Cooper-Smith v. Palmateer,
397 F.3d 1236 (9th Cir. 2005) (affirming
denial of federal habeas relief where de
novo review of an ineffective assistance
of counsel claim showed that the conduct
did not rise to the level of a constitutional
violation); cf. Williams v. Taylor, 529
U.S. 362, 406 (2000) (“A state-court deci-
sion will also be contrary to this Court’s
clearly established precedent if the state
court . . . arrives at a result different from
our precedent.”); Hernandez v. Small, 282
F.3d 1132, 1140 (9th Cir. 2002) (“[T]he
intricacies of the state court’s analysis
need not concern us; what matters is
whether the decision the court reached
was contrary to controlling federal law.”).
(b) Or, is our review under the “contrary to”
prong of 28 U.S.C. § 2254(d)(1) confined
268 FRANTZ v. HAZEY

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to the reasoning employed by the state
court, necessitating a grant of federal
habeas relief when the state court utilized
reasoning contrary to precedent of the
Supreme Court? See Van Lynn v. Farmon,
347 F.3d 735, 741 (9th Cir. 2003) (“[A]
federal court may not avoid granting
habeas relief by positing an alternative
reason for the state court’s decision that
might have enabled the state court to
reach the same result, where the record
reveals that the state court did not base its
decision on that alternative reason.”); cf.
Early v. Packer, 537 U.S. 3, 8 (2002) (per
curiam) (noting that a state court need not
even be aware of the Supreme Court’s
cases “so long as neither the reasoning
nor the result of the state-court decision
contradicts them”).
(2) Does petitioner’s claim amount to structural
error under McKaskle v. Wiggins, 465 U.S. 168
(1984)?
The government shall file its brief by February 2, 2007 and
petitioner by February 23, 2007. The government may file a
reply brief by March 2, 2007. Briefs shall not exceed 14,000
words. A copy of this Order shall also be served by the Clerk
via phone and facsimile on counsel for the Respondent War-
den.
269 FRANTZ v. HAZEY

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