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,

Tucson Director,

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, Arizona 85007, who will locate suitable counsel able to give this

matter immediate attention in light of the exigent nature occasioned 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
conference regarding the jury’s request to hear a tape of a 911

telephone call violated his Sixth Amendment right of selfrepresentation 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 constitutional violation occurred. Yet, the Supreme Court has construed a violation of the Sixth Amendment right of selfrepresentation as a structural defect not susceptible to harmless 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 decision 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
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 Warden.

FRANTZ v. HAZEY 269
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