Shewfelt

concurring.

I concur in the judgment. However, I write separately to address the issue that the majority declines to reach: whether a defendant’s right to attend a playback constitutes “clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254 (d)(1). In my opinion, the failure to recognize the right to be present during a playback or readback would be an “unreasonable application” of the larger body of Supreme Court precedent establishing the right of defendants to attend all essential phases of their own trial. See Rushen v. Spain, 464 U.S. 114, 117 , 104 S.Ct. 453 , 78 L.Ed.2d 267 (1983); Illinois v. Allen, 397 U.S. 337, 338 , 90 S.Ct. 1057 , 25 L.Ed.2d 353 (1970). Accordingly, I would affirm this aspect of the Aaska Supreme Court’s holding and find that for a state court to hold otherwise would violate even the deferential, AEDPA-amended language of § 2254(d)(1).

In Williams v. Taylor, 529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000), the Supreme Court explained that a state court makes an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal principle from [the Supreme]…

MEMORANDUM *

Appellant Paul D. Shewfelt appeals the district court’s summary judgment denying his petition for a writ of habeas corpus. The petition sought relief from a conviction for first degree sexual assault on the ground that Shewfelt’s involuntary absence from a playback of testimony for the jury violated his right to be present at all stages of trial. Shewfelt’s habeas petition was filed on January 26, 1998; it is therefore governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214. See Jeffries v. Wood, 114 F.3d 1484, 1495-96 (9th Cir.1997) (en banc). Under AEDPA, we may not grant the writ unless the Alaska Supreme Court decision involved an unreasonable application of clearly established Supreme Court precedent. See 28 U.S.C. § 2254 (d); Williams v. Taylor, 529 U.S. 362 , 120 S.Ct. 1495, 1523 , 146 L.Ed.2d 389 (2000).

Whether the right to attend a playback is “clearly established” under this standard presents a difficult question of first impression. However, we need not decide the question. The Alaska Supreme Court did not deny the right existed; it merely concluded that in this case any error was harmless. See…