Gutierrez

MEMORANDUM **

California state prisoner David Gerome Gutierrez appeals pro se the district court’s order denying his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction and sentence for battery of a cohabitant. This Court granted a Certificate of Appealability (“COA”) as to the issue of whether the trial court violated Mr. Gutierrez’ right to be present at all critical stages of the proceedings when an in-chambers conference raised the issue of Mr. Gutierrez’ retained counsel’s ability to proceed at trial because of loss of sleep caused by concern resulting from her mother’s illness. Mr. Gutierrez’s counsel informed the court she could proceed without a continuance. We have jurisdiction pursuant to 28 U.S.C. § 2254 . 1 We affirm.

The defendant’s presence is a condition of due process only to the extent that a fair and just hearing would be thwarted in his absence. United States v. Gagnon, 470 U.S. 522, 526 , 105 S.Ct. 1482 , 84 L.Ed.2d 486 (1985). A conference is not a critical stage if there is no indication that the defendant could have done anything or gained anything had he been present. Id. at 527 , 105 S.Ct. 1482 . We conclude that Mr. Gutierrez’…