Frantz

with whom Judges O’SCANNLAIN, RYMER, SILVERMAN, CALLAHAN, and IKUTA join, concurring in Part II and in the result:

Although I am in agreement with the majority that an evidentiary hearing is necessary to determine what was said or decided between the Appellant-Defendant, Karl Frantz, and his standby counsel, Raymond Lamb, in advance of the in camera conference to address the jury’s request to hear the 911 tape, I write separately because I conclude the majority’s rationale is unduly complicated, and intimates conclusions about the scope of the right of self-representation under Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975) and McKaskle v. Wiggins, 465 U.S. 168 , 104 S.Ct. 944 , 79 L.Ed.2d 122 (1984), without knowledge of the predicate facts.

Frantz was arrested in Arizona on August 31, 1998, after he allegedly walked into a fast-food restaurant, demanded all the money in the register from cashier Diana Villalobos, threatened to kill Villalo-bos if she did not hand over the money, and finally lifted his shirt to reveal a handgun tucked in the waistband of his pants. The police were called, Frantz left, and shortly thereafter, not far from the…

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.

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 *1006 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…

with whom Judges WARDLAW, PAEZ and BEA join, concurring:

=Judge Gould spends much effort proving something that no one disputes: That a criminal defendant who represents himself may use standby counsel to take certain actions on his behalf. Judge Gould’s worry that we are “hostile to the ability of a pro se defendant to delegate trial tasks to standby counsel,” Gould Concurrence at 1030, is entirely unfounded. Cases where a pro se defendant voluntarily delegates tasks that he could perform himself remain unaffected by today’s opinion, which turns on a very different question: Whether petitioner was allowed to appear at the bench conference to speak for himself — as he was entitled to do under Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975), and McKaskle v. Wiggins, 465 U.S. 168 , 104 S.Ct. 944 , 79 L.Ed.2d 122 (1984)— *1024 or whether he was forced to communicate only through standby counsel?

On this record, this is hardly a trivial issue. Consideration of a jury note in the midst of deliberations is a critical stage of the proceedings where both sides are entitled to express their views. See McKaskle, 465 U.S. at 178 , 104 S.Ct. 944 . When the jury…

I. BACKGROUND

A.

Karl Frantz was indicted for and later convicted of attempted armed robbery of a McDonald’s restaurant in Ari- zona. 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 com- 1 We recite here the facts evident from the portions of the state record before us. While we have the transcript of the entire trial through the close of evidence, our record lacks substantial portions of the transcripts from various pre-trial proceedings, off-the-record discussions during the jury’s deliberations, and sentencing. FRANTZ v. HAZEY 713 petent to do so but directed Bates to remain involved as “advi- sory counsel.” Later, but still before trial began, attorney Raymond Lamb replaced Bates as advisory counsel.

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…