Frantz v. Hazey, 05-16024.

Citation533 F.3d 724
Decision Date22 January 2008
Docket NumberNo. 05-16024.,05-16024.
PartiesKarl Adolph FRANTZ, Petitioner-Appellant, v. Herbert HAZEY; Dora B. Schriro, Director, Respondents-Appellees.* * Editor's Note: Due to publisher's error, opinion is republished below.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Jon M. Sands, Federal Public Defender, for the petitioner-appellant.

Michael L. Burke, Phoenix, AZ, for the petitioner-appellant.

Paula K. Harms, Phoenix, AZ, for the petitioner-appellant.

Megan Moriarty, Assistant Federal Public Defender, for the petitioner-appellant.

Terry Goddard, Attorney General, for the respondents-appellees.

Randall M. Howe, Chief Counsel, Criminal Appeals Section, State of Arizona Attorney General's Office, for the respondents-appellees.

Appeal from the United States District Court for the District of Arizona; William D. Browning, District Judge, Presiding. D.C. No. CV-04-00135-WDB.


Opinion by Judge BERZON, with whom Chief Circuit Judge KOZINSKI, and Judges SCHROEDER, PREGERSON, THOMAS, GRABER, WARDLAW, PAEZ, and BEA join; Concurrence by Chief Judge KOZINSKI; Concurrence by Judge GOULD.

BERZON, Circuit Judge:

Karl Frantz appeals the district court's denial of his petition for a writ of habeas corpus. Invoking the Sixth Amendment right to self-representation and the limits on advisory attorneys' participation described in McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) Frantz challenges his exclusion from a chambers conference in which his advisory counsel participated and discussed how the judge should respond to a query from the deliberating jury.1 The Arizona Court of Appeals denied Frantz's claim on harmless error grounds. Clearly established Supreme Court law holds, however, that a McKaskle error is structural and therefore not subject to harmless error analysis. Deciding this appeal first requires that we clarify our approach to reviewing state court decisions that rely on legal principles contradicting clearly established Supreme Court law but do not necessarily reach the wrong result. Having done so, we then proceed to consider the McKaskle issue on its constitutional merits.


Karl Frantz was indicted for and later convicted of attempted armed robbery of a McDonald's restaurant in Arizona. At the outset of the judicial proceedings, attorney Paul Bates was appointed to represent Frantz and began to do so. Before trial began, Frantz waived his right to counsel and chose to represent himself. The trial court found Frantz competent to do so but directed Bates to remain involved as "advisory counsel." Later, but still before trial began, attorney Raymond Lamb replaced Bates as advisory counsel.2

At trial, Frantz was limited to questioning witnesses from behind the defense table. For reasons not fully explained in the record before us, Frantz was required to wear a leg brace. The limitation on his movement, the state appellate court later explained, minimized the risk of prejudice from the jury's viewing his shackles. Further, "[t]o avoid any appearance that [Frantz] was penalized by representing himself, the prosecutor also examined witnesses and argued her case while seated at the prosecution's table."

Notwithstanding these restrictions, Frantz undertook most of his own defense. He gave a statement to the jury venire; examined and cross-examined all of the witnesses; responded to the state's motions to admit exhibits; stated objections to testimony; and gave a closing argument before the jury. Frantz also participated during trial in one bench conference regarding questions for a witness submitted by the jury, and in two conferences in which the judge and the parties discussed jury instructions out of the presence of the jury.

At the first conference regarding jury instructions, both Lamb and Frantz were present. Lamb told the court that he believed Frantz should ask for instructions to cover the lesser included offense of disorderly conduct. After the judge said he would consider the suggestion, Frantz made a separate request, without any apparent direction or input from Lamb. Beginning, "if I may, one other thing," Frantz asked the court also to consider instructing the jury on a separate lesser included offense: assault. Frantz described why he believed assault was a lesser included offense and rebutted the state's argument to the contrary, telling the court that "there is an abundance of different types of assaults that can take place [and] some of them don't necessitate ... any type of weapon or anything."

After a recess, the judge conferred with the parties once more regarding the jury instructions. Although Lamb was present, when the court asked first whether the proposed verdict forms were "agreeable" and, later, whether the parties wanted to raise other matters related to the instructions, only Frantz and the state prosecutor answered.

At this latter conference regarding jury instructions, and at other junctures during trial, Frantz also repeatedly asked the court to admit as evidence either the tape or the transcript3 of the 911 call made from the McDonald's restaurant during the incident. Frantz argued that the tape or transcript was admissible to impeach Diana Villalobos, a McDonald's employee who testified that Frantz approached her, demanded money, and threatened her with a gun. Although the 911 caller stated that the intruder had a gun — information that bolstered the state's case — Frantz maintained that the 911 call also contained impeachment material because a woman on the tape — whom Frantz contends is Villalobos — identified the robber as blond, while Frantz describes his hair as brown and gray.4

Despite Frantz's active and vocal advocacy, Lamb was not silent during Frantz's two-day trial. Lamb presented needed exhibits to witnesses and also spoke briefly, in Frantz's presence, on a number of issues. He stated, for example, that there were no further questions for potential jurors during voir dire and that there was no objection to admission of certain state exhibits. He verified exhibit labels, cautioned Frantz to slow down his questioning, requested aspirin for Frantz, and counseled Frantz to "shut up" when Frantz identified himself in a photograph shown to a testifying police officer.

Lamb also participated, unaccompanied by Frantz, in a bench conference during voir dire and in seven bench conferences that took place during trial.5 During voir dire and in the first five of these conferences during trial, the judge requested "counsel" to approach the bench, and Lamb proceeded instead of Frantz. At the conference during voir dire, Lamb stated that he had no follow-up questions for a prospective juror. In one bench conference during trial, Lamb conceded the prosecutor's objection to a report that Frantz previously stated he wished admitted. In three others, Lamb reviewed questions submitted by the jury for specific witnesses and stated that he had no objection; the record does not show whether Frantz also reviewed the questions or whether Frantz and Lamb discussed them prior to the bench conferences. In the fifth conference during trial, the court reminded Lamb to reserve Frantz's "Rule 20" right,6 and Lamb advised the court that he was going to try to persuade Frantz not to make an opening statement before the presentation of defense witnesses.7

In the final two bench conferences, Lamb argued for the admission of several pieces of evidence: an officer's testimony about what a witness told her, portions of Frantz's bank records, and the tape or transcript of the 911 call. The first such conference began when Frantz asked, "Can we approach?" Lamb approached the bench without Frantz and began the discussion by stating that "Frantz want[ed][him] to suggest" that the door had been opened for the officer's testimony about what witnesses told her. In the discussion that followed, the judge changed the subject to the 911 tape, which Frantz had previously asked the court to admit. Lamb told the court that Frantz was "fixated" on the question of the robber's hair color. But the judge did not rule on the admissibility of the tape; he simply upheld the objection to the officer's testimony.

The last bench conference began after Lamb told the court in Frantz's presence, "We have some proposed exhibits." Lamb and the prosecutor approached the bench and discussed admission of the bank records and the transcript of the 911 call. The judge ruled admissible a portion of the bank records and suggested that, with the proper foundation, he would allow into evidence at least portions of the 911 call transcript, either under an exception to the hearsay rule or as admissible non-hearsay. Lamb stated, however, that he would advise Frantz that the bank records "should suffice, that that is [sic] — that will give him better grounds to argue[the call transcript], and maybe we can dispense with that." The judge never explicitly ruled on the 911 call transcript. Shortly after Lamb asked "for a minute to talk to [his] client" and the court ruled on the bank records, Frantz withdrew his request for the transcript.

Neither the 911 tape nor the transcript of the call was thus ever presented to the jury at trial. But, critically for this appeal, the question of the tape arose again, and Lamb, alone, addressed the question before the court.

While deliberating, the jury submitted questions related to the tape of the 911 call and to a statement from a "manager," presumably of the McDonald's restaurant. The judge addressed the two questions in a chambers conference attended by Lamb and the...

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