Kyle K. Clark v. KEVIN LINDSEY, Warden

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0213p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KYLE K. CLARK,
Petitioner-Appellant,
v.
KEVIN LINDSEY, Warden,
Respondent-Appellee.
┐
│
│
│
│
│
│
│
┘
No. 18-1640
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:16-cv-13485—Stephen J. Murphy, III, District Judge.
Argued: June 28, 2019
Decided and Filed: August 23, 2019
Before: NORRIS, CLAY, and SUTTON, Circuit Judges.
_________________
COUNSEL
ARGUED: Kevin S. Gentry, GENTRY NALLEY, PLLC, Howell, Michigan, for Appellant.
Rebecca A. Berels, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee. ON BRIEF: Kevin S. Gentry, GENTRY NALLEY, PLLC, Howell,
Michigan, for Appellant. Rebecca A. Berels, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellee.
SUTTON, J., delivered the opinion of the court in which NORRIS, J., joined. CLAY, J.
(pp. 7–14), delivered a separate dissenting opinion.
>

-- 1 of 14 --

No. 18-1640 Clark v. Lindsey Page 2
_________________
OPINION
_________________
SUTTON, Circuit Judge. A Michigan jury convicted Kyle Clark of criminal sexual
assault and domestic violence. In his direct appeal, Clark argued that his convictions should be
set aside based on a Sixth (and Fourteenth) Amendment violation that allegedly arose when a
scheduling error prohibited his lawyers from being physically present at his competency hearing.
The Michigan Court of Appeals rejected the claim on the ground that the attorneys nonetheless
were able to communicate with Clark and the court about the competency report—and all agreed
that he no longer would challenge his competence. Clark filed a § 2254 habeas petition raising
the same claim. The district court denied the petition. Because no U.S. Supreme Court case
requires a different result, we affirm.
The State of Michigan charged Kyle Clark with criminal sexual assault and domestic
violence in 2011. Before trial, Clark agreed to undertake a psychological examination to
determine his competence to stand trial. The report concluded that Clark was competent. Clark
went over the report with his two attorneys, and the three agreed that Clark would no longer
challenge his competence to be tried. His legal team communicated the point to the trial judge,
and the court set a date for Clark formally to agree to be tried. A scheduling mix-up interfered.
On the date of the hearing, each of Clark’s two attorneys mistakenly thought the other would
attend the hearing. The end result was a hearing with just Clark, the prosecutor, and the trial
judge present. The judge communicated his understanding, based on a prior message from
Clark’s counsel, that Clark would no longer challenge his competence to be tried. Consistent
with all of these communications, Clark agreed to be tried, and the hearing ended. In the
criminal trial, which occurred about four weeks later, a jury found Clark guilty on both counts
and sentenced him to 10 to 15 years’ imprisonment.
On direct appeal, Clark argued that the State deprived him of his right to counsel at the
competency hearing. The Michigan Court of Appeals disagreed, noting Clark’s communication
with his attorneys and his attorneys’ communication with the trial court. People v. Clark, No.
313121, 2014 WL 2795855, at *4 (Mich. Ct. App. June 19, 2014) (per curiam).

-- 2 of 14 --

No. 18-1640 Clark v. Lindsey Page 3
In this § 2254 habeas action, Clark does not challenge his competence to be tried. He
instead claims that the physical absence of his attorneys from the competency hearing
automatically requires the verdict to be undone and automatically requires his release from jail
on the ground that the absence of counsel amounted to a structural error in the proceeding. The
district court denied the petition, holding that no Supreme Court case calls for automatic
prejudice in this situation. We agree.
AEDPA establishes the framework for resolving this case. In reviewing Clark’s petition,
we may not grant relief unless the state’s decision on that claim contradicted or unreasonably
applied U.S. Supreme Court precedents. 28 U.S.C. § 2254(d)(1). That means the state court
must have applied Supreme Court holdings in an “objectively unreasonable” way, as “even clear
error will not suffice” to overturn a state court decision in this setting. Woods v. Donald, 135 S.
Ct. 1372, 1376 (2015) (per curiam) (quotation omitted).
The state court reasonably denied Clark’s claim of structural error. According to the U.S.
Supreme Court, a defendant can show a Sixth Amendment violation without the need to prove
prejudice when there is a “complete denial of counsel” at, or counsel is “totally absent” from, a
“critical stage of the proceedings.” United States v. Cronic, 466 U.S. 648, 658–59 & n.25
(1984). At least two limitations accompany the Cronic rule—each applicable here.
One is that no Supreme Court case has ever found structural error unless the State was
responsible for counsel’s absence. See Maslonka v. Hoffner, 900 F.3d 269, 279 (6th Cir. 2018).
To warrant automatic prejudice, a state law or state actor must prevent counsel’s presence or
limit his representation. Id.; cf. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921,
1928–29 (2019). That did not remotely happen. The State did not prevent Clark’s attorneys
from attending the hearing. All that happened was that Clark’s attorneys had a scheduling mix-
up, one mitigated by the attorneys’ earlier communication with Clark and the judge about the
competency report and earlier decision not to challenge his competence any longer. Cronic’s
presumption of prejudice simply does not apply in this setting.
A second limitation is that no Supreme Court case has found structural error where the
lawyers and the court and the client in fact communicated about the point at hand. Cronic itself

-- 3 of 14 --

No. 18-1640 Clark v. Lindsey Page 4
did not involve “a claim based on counsel’s absence.” Woods, 135 S. Ct. at 1377. In the two
most analogous habeas cases about “counsel’s absence,” the Court denied relief each time. In
Wright v. Van Patten, the defendant’s attorney was physically absent from a plea hearing but
participated by speakerphone. 552 U.S. 120, 121 (2008) (per curiam). The Court denied relief
because none of its cases required automatic prejudice in that setting—where the defendant’s
lawyer could communicate with the court, just not in a face-to-face way. Id. at 125–26. In
Woods v. Donald, the defendant’s attorney was gone for about ten minutes of trial testimony
about other defendants. 135 S. Ct. at 1375, 1377–78. The Court again denied relief because
none of its cases made clear that such a situation warranted automatic prejudice. Id. at 1377–78.
In doing so and in reversing a contrary decision of our court, the Supreme Court reminded the
lower federal courts that state courts “enjoy broad discretion” where “the precise contours of [a]
right remain unclear.” Id. at 1377 (quotation omitted). The state court’s decision in today’s case
fits that description—and warning—to a tee.
Two of our own cases bolster this conclusion. In Makidon v. Elo, the defendant pleaded
guilty while his attorney was not in the courtroom. 3 F. App’x 409, 412 (6th Cir. 2001) (per
curiam). But the defendant had talked to his attorney about the charge against him and told the
court that he wished to plead guilty without his attorney. Id. On those facts, we denied the
defendant’s § 2254 Cronic claim. Id. In United States v. Brika, the defendant’s attorney was
absent when the judge instructed the jury. 416 F.3d 514, 523–26 (6th Cir. 2005). On direct
review, we declined to presume prejudice because Brika’s counsel had seen and debated the
proposed instructions with the court before the judge instructed the jury. Id.
Keep in mind, moreover, exactly what is at stake. A failure to grant automatic prejudice
for a Sixth Amendment violation under Cronic does not mean the defendant has no recourse.
Quite to the contrary. The defendant still may show that his attorneys provided ineffective
assistance—a well-paved route for proving a Sixth Amendment violation. To prevail on that
claim, Clark must establish that his attorneys performed deficiently and prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Clark cannot obtain relief on that ground. Sure, he might be able to establish that his
lawyers’ failure to attend his competency hearing fell below the performance expected of

-- 4 of 14 --

No. 18-1640 Clark v. Lindsey Page 5
reasonable attorneys. But he could not show actual prejudice from the error. Clark’s attorneys
got confused about who would be where when. Even so, they told the judge before the hearing
that they did not object to the report and that Clark wanted to go to trial as scheduled. At the
hearing, the court explained the attorneys’ position and asked Clark for his thoughts. Clark
confirmed that he “spoke [at] length” about “the competency hearing with both of [his]
attorneys” and that he wanted to go ahead with trial. R. 6-9 at 4–5. The court found that Clark
had reviewed the report with his attorneys and accepted its competency finding. Clark indeed
makes no argument today that he lacked competence or that the report erred in any way. The
attorneys’ physical absence, all in all, did not hurt Clark’s defense.
The dissent claims that two of our cases require relief. But we may grant habeas relief
under AEDPA only if the state court contradicted or unreasonably applied the Supreme Court’s
decisions. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 381–82 (2000). A Sixth
Circuit decision is not a U.S. Supreme Court decision.
What’s more, the Sixth Circuit decisions are not helpful even on their own terms.
Neither decision addresses the state-action requirement that links the U.S. Supreme Court’s
decisions and thus neither decision offers a holding on what it means when a state court proceeds
without counsel present due to no misconduct by the State. See French v. Jones, 332 F.3d 430
(6th Cir. 2003); Caver v. Straub, 349 F.3d 340 (6th Cir. 2003). The case that does address the
point head on, our decision in Maslonka, comes out the other way. There, the federal agents and
Assistant U.S. Attorney, no less state actors than a trial judge, met and discussed plea deals with
Maslonka in the absence of his counsel. 900 F.3d at 274–75. And yet there, we rejected the
Cronic automatic prejudice claim due to the absence of state action interfering with the client’s
consultations with his lawyers. All told, the Supreme Court’s cases in this context require more
active involvement—say failing to appoint counsel, denying the opportunity to cross-examine
witnesses, denying a chance to make a closing argument, or denying an attorney access to his
client—by a state law or state actor to find structural error. See id. at 279–80. In this case, the
trial court’s decision to proceed with Clark’s competency hearing despite the attorneys’
scheduling error, but with assurance from the attorneys and from Clark that they had reviewed
the report and did not object, does not meet that threshold.

-- 5 of 14 --

No. 18-1640 Clark v. Lindsey Page 6
Even setting aside the state action problem, this case differs from French and Caver in
other ways. In French, the court, without prior warning or discussion, gave the jury a non-
standard instruction before the defendant’s attorneys returned from a recess. 332 F.3d at 434. In
Caver, the court, again without prior warning or discussion, wrote the jury a note and
reinstructed the jury while the defendant’s counsel was absent. 349 F.3d at 351–52. Brika
distinguished both of those cases on the ground that the lawyer in Brika spoke to the court about
the jury instructions beforehand. 416 F.3d at 525. That is today’s case, which is akin to Brika
because one of Clark’s attorneys talked to the court about the competency hearing in advance
and told him they had no objection to the report’s finding. All of this shows at a minimum that
the Michigan Court of Appeals did not contradict or unreasonably apply the U.S. Supreme
Court’s decisions in this area.
Clark objects, featuring the “totally absent” language in Cronic. But that language must
be read in the context of other language—that Cronic acknowledged only a “narrow” structural-
error exception, Florida v. Nixon, 543 U.S. 175, 190 (2004), that applies in “circumstances that
are so likely to prejudice the accused that the cost of litigating their effect in a particular case is
unjustified,” Cronic, 466 U.S. at 658. The U.S. Supreme Court has never applied automatic
prejudice based on an attorney’s mere physical absence for some period of time, leaving plenty
of room for “fairminded disagreement” over today’s fact pattern. Woods, 135 S. Ct. at 1376
(quotation omitted). That’s all we need to know. The Michigan Court of Appeals reasonably
rejected Clark’s claim.
We affirm.

-- 6 of 14 --

No. 18-1640 Clark v. Lindsey Page 7
_________________
DISSENT
_________________
CLAY, Circuit Judge, dissenting. This case comes to us on habeas review after the trial
court held a competency hearing in Petitioner Kyle Clark’s criminal trial, despite defense
counsel’s failure to appear for the proceeding. The majority holds that despite this failure, Clark
was not deprived of his right to counsel. Because this holding conflicts with the Supreme
Court’s directive in United States v. Cronic that constitutional error has occurred “when counsel
was either totally absent, or prevented from assisting the accused during a critical stage of the
proceeding,” I respectfully dissent. 466 U.S. 648, 659 n.25 (1984).
I. Background
The State of Michigan initiated criminal proceedings against Clark for criminal sexual
assault and domestic violence in 2011. In a May 2012 pretrial hearing, defense counsel raised
concerns about Clark’s mental status, and the trial court referred Clark for a competency hearing.
The trial court scheduled a competency hearing on August 1, 2012, at which the parties would
discuss a report from the Michigan Department of Community Mental Health recommending
that Clark be found competent.
What happened next is unclear, despite the majority’s attempt to present the facts as
straightforward. When the parties gathered for the hearing on August 1, 2012, Clark’s attorneys
were absent. The trial court discussed the attorneys’ absence with Clark and the prosecution.
The trial judge initially stated that Clark’s attorneys had not communicated with him, but later
reversed course and stated that there had been some form of communication:
THE COURT: Mr. Clark, apparently there was some mix-up in your attorney’s
office with regard to which attorney would be here or not, given the fact that the
Court moved up the court date in light of the report that the Court received from
the Michigan Department of Community Mental Health.
I’m not sure if the Prosecutor had any communication with either of the attorneys
of record. ‘Cuz I know their office didn’t communicate with my office.
[THE PROSECUTION]: No, your Honor, they—they failed to communicate with
us on a regular basis as it is.

-- 7 of 14 --

No. 18-1640 Clark v. Lindsey Page 8
THE COURT: What I can state for the record is what was communicated was
that, and again I’m not sure if it was Mr. Cataldo or Mr. LaCommare, but they
communicated with the off—with my office that they had no objection to
accepting the July 2nd, 2012 report where the Defendant was deemed to be
competent and—and proceed with this matter pending the trial as is currently
scheduled on August 27th.
(R. 6-9, Final Pretrial Transcript, PageID # 210–211.)1 The prosecution initially objected to the
court proceeding without Clark’s attorneys present to explain “whether or not they’ve gone over
this . . . report with their client.” (Id. at PageID # 210.) In fact, the prosecution expressed doubt
that the defense attorney who spoke with the trial court had gone over the competency report at
all, stating:
I would object to the Court accepting that stipulation because Mr. LaCommare
[one of Clark’s attorneys], who’s the individual I understand talked to your
staff, . . . stated that he wasn’t covering the competency portion of it, and[]
therefore he wasn’t familiar with it and yet he wants this Court to accept the
stipulation to that report. I would presume he hasn’t read it or I would presume
that he’s not familiar with it or is not in position to stipulate it or go over it with
his client. So I think to protect the Defendant in this position I would . . . ask for
[] a week adjournment with [the] request that Mr. LaCommare and Mr. Cataldo
both be present before your Honor next week, to explain who’s the attorney,
whether or not they’ve gone over this report with their client, and at that point our
office would be willing to stipulate to it. But, I think at this point it would be a
failure of the system to allow stipulation to that report.
(Id.) Clark then stated, “I’ve gone over the competency hearing with both of my attorneys and
spoke in length with it [sic] and I believed it was deemed that we would proceed with trial on
August 27th.” (Id. at PageID # 210–11.) The trial court then deemed Clark competent, based on
“the representations of Mr. Clark that have been placed on record that he’s met with both of
these attorneys to go over the report and accepting the stipulation.” (Id. at PageID # 212–13.)
1The majority suggests that the trial judge heard directly from Clark’s counsel before the hearing, yet the
nature of this supposed communication is entirely unclear from the trial judge’s statements. Op. at 2 (“The judge
communicated his understanding, based on a prior message from Clark’s counsel, that Clark would no longer
challenge his competence to be tried.”). Instead, at the competency hearing, the trial judge relayed his second-hand
understanding of the situation based on the fact that one of Clark’s attorneys had apparently “communicated . . .
with [his] office” that they would not attend the hearing and did not object to accepting the report. The obvious
impropriety of proceeding in such circumstances prompted even the prosecution to object, out of concern for Clark’s
constitutional rights.

-- 8 of 14 --

No. 18-1640 Clark v. Lindsey Page 9
The case proceeded to trial, and Clark was found guilty and sentenced to 10 to 15 years’
imprisonment. The Michigan Court of Appeals affirmed Clark’s conviction, finding that he was
not deprived of the right to counsel at his competency hearing because “the trial court accepted
defendant’s representation that he considered the competency report with his attorneys and
accepted the stipulation that defendant was competent.” (R. 6–14, Mich. Ct. App. Opinion,
PageID # 370.)
Clark filed this habeas action in the Eastern District of Michigan on September 27, 2016.
After the district court denied Clark’s request for habeas relief and declined to issue a certificate
of appealability, this Court granted a certificate of appealability on the issue of whether Clark’s
Sixth Amendment right to counsel was violated when the trial court held Clark’s competency
hearing without his counsel present.
II. Clark’s deprivation of the right to counsel
The Sixth Amendment guarantees a defendant the right to counsel at all critical stages of
the criminal process. Iowa v. Tovar, 541 U.S. 77, 87 (2004). In determining whether Clark’s
constitutional right to counsel was violated, one important point must be addressed at the outset.
The majority repeatedly relies on Clark’s statements at the competency hearing to the effect that
he had previously discussed the competency hearing with his attorneys. But because Clark made
those statements before his competency had been determined, we cannot rely on them in
determining whether Clark’s right to counsel was violated. Cf. Pate v. Robinson, 383 U.S. 375,
384 (1966) (“[I]t is contradictory to argue that a defendant may be incompetent, and yet
knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand
trial.”). This also explains why Makidon v. Elo, cited by the majority, has no bearing on this
case: in Makidon, which involved a plea hearing rather than a competency hearing, the Court
relied heavily on the fact that “Makidon told the trial court that he had no further questions for
counsel, that he had decided how to proceed with the advice of counsel, and that he affirmatively
wished to proceed despite counsel’s absence from the courtroom.” 3 F. App’x 409, 412 (6th Cir.
2001). Moreover, the Court in Makidon found that the defendant “knowingly and voluntarily
waived his counsel’s presence from the plea hearing.” Id. In contrast, Clark’s statements to the
effect that he had discussed the hearing with his attorneys and wished to move forward occurred

-- 9 of 14 --

No. 18-1640 Clark v. Lindsey Page 10
at Clark’s own competency hearing—before his competency had been established—so it would
defy logic for this Court to rely on Clark’s statements in reaching its decision.
The Michigan Court of Appeals held that Clark’s attorneys’ failure to appear at his
competency hearing did not deprive Clark of the representation he was due. The court based this
finding on the fact that one of Clark’s attorneys purportedly communicated his absence and
acceptance of the report to the trial court before the hearing, and “[t]he trial court accepted
[Clark’s] representation that he considered the competency report with his attorneys and
accepted the stipulation that [Clark] was competent.” (R. 6-14, Mich. Ct. App. Opinion, PageID
# 370.)
Clark argues that the Michigan Court of Appeals’ decision directly contradicts the
Supreme Court’s decision in Cronic. In that case, the Supreme Court stated that “[t]he
presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if
the accused is denied counsel at a critical stage of his trial.” 466 U.S. at 659. In other words, the
Supreme Court “has uniformly found constitutional error without any showing of prejudice when
counsel was either totally absent, or prevented from assisting the accused during a critical stage
of the proceeding.” Id. at 659 n. 25. In cases where counsel was “totally absent” during a
critical stage of criminal proceedings, Cronic directs courts to bypass the Strickland analysis of
whether a defendant was prejudiced by counsel’s deficient performance.
The majority relies on this Court’s decision in Maslonka v. Hoffner, 900 F.3d 269 (6th
Cir. 2018). In Maslonka, this Court considered whether Cronic applied when a defendant’s
attorney failed to appear during federal cooperation meetings between Maslonka and federal
agents, which we assumed without deciding were critical stages of the proceedings. In
addressing the petitioner’s deprivation of counsel argument, this Court stated that “a counsel’s
mere physical absence from a critical stage of a proceeding, based on the counsel’s own failure
to be present rather than any denial by the state,” is not sufficient to constitute denial of counsel
under Cronic. Id. at 279. Instead, this Court determined that Cronic only applies if the state
“played a part in preventing adequate representation.” Id. at 280.

-- 10 of 14 --

No. 18-1640 Clark v. Lindsey Page 11
The majority overlooks a crucial component of Maslonka, which recognized the ample
case law demonstrating that a trial judge’s actions can serve as the role of the state in denying
counsel. Id. For example, the Court in Maslonka compared that case to the earlier Sixth Circuit
case Mitchell v. Mason, in which the Sixth Circuit affirmed a grant of habeas relief to a state
prisoner under Cronic. Mitchell v. Mason, 325 F.3d 732 (6th Cir. 2003). In Mitchell, the Court
found that Cronic applied when the trial court had refused to appoint new counsel despite
knowing that the defendant’s counsel was not providing representation. Id. at 741–42.
Maslonka explained that “in Mitchell the ‘trial court repeatedly ignored Mitchell’s entreaties for
counsel who would properly prepare a defense,’ meaning that some state actor . . . played a part
in preventing adequate representation.” Maslonka, 900 F.3d at 280 (quoting Mitchell, 325 F.3d
at 744). Similarly, in French v. Jones, 332 F.3d 430 (6th Cir. 2003), this Court affirmed a
district court’s grant of habeas to a state court prisoner under factual circumstances similar to
Clark’s. The trial court in that case gave a supplemental jury instruction to deadlocked jurors
while French’s counsel was absent. Id. at 434. This Court found that French had been denied
his right to counsel at a critical stage of the proceedings, and that he was thus entitled to a
presumption of prejudice under Cronic. Id. at 436–39. This Court reached the same conclusion
under nearly identical facts in Caver v. Straub. 349 F.3d 340, 350 (6th Cir. 2003) (“[U]nder
Cronic . . . if Petitioner’s trial counsel was, indeed, absent during the re-instruction, a structural
error occurred in the trial court proceeding, and either relief from judgment or a writ of habeas
corpus could be properly granted on this ground. Any conclusion otherwise would be an
unreasonable application of clearly established federal law as stated in Cronic.”).
The critical difference between Maslonka on the one hand and Mitchell, French, and
Caver on the other is the involvement of the trial court in the denial of counsel. In Maslonka, the
alleged deprivation of counsel occurred when Maslonka’s counsel did not attend cooperation
meetings with federal authorities, which this Court assumed without deciding were “part of the
critical stage of his state plea negotiations because his more-favorable state plea offer hinged on
that federal cooperation.” Maslonka, 900 F.3d at 279. Federal cooperation meetings are not a
stage of proceedings at which the trial court judge would normally be present, so the trial judge
played no role in sanctioning Maslonka’s counsel’s absence at those meetings. In contrast, the
deprivations of counsel in Mitchell, French, and Caver each involved active participation by the

-- 11 of 14 --

No. 18-1640 Clark v. Lindsey Page 12
trial court. In each case, the trial court knew of counsel’s absence and decided to continue with
proceedings without them. In Mitchell, the most extreme of the three cases, Mitchell’s counsel
made “no effort to consult with the client” and was suspended from practicing law before the
trial, yet the trial court denied Mitchell’s repeated requests for a new attorney. Mitchell,
325 F.3d at 744. Similarly, in French and Caver, the trial court issued new jury re-instructions
despite knowing that the defendants’ attorneys were not present. French, 332 F.3d at 436–39;
Caver, 349 F.3d at 350.
Together, these cases demonstrate that when a trial court proceeds with a critical stage
despite knowing that a defendant’s counsel is not present, Cronic governs. In other words, a trial
court’s decision to proceed with the critical stage despite counsel’s absence is sufficient to
establish that a state actor “played a part in preventing adequate representation,” such that Cronic
applies and the habeas petitioner is entitled to a presumption of prejudice. Maslonka, 900 F.3d at
280. The majority’s holding to the contrary renders Maslonka inconsistent with this Court’s
earlier published cases. The facts of this case are more similar to Mitchell, French, and Caver
than to Maslonka. Just as in Mitchell, French, and Caver, the trial court in this case chose to
continue with Clark’s competency hearing, despite its extensive conversation with Clark and
with the prosecution noting the obvious fact that Clark’s attorneys were absent. The trial court
ostensibly made this decision because one of Clark’s attorneys called the trial court or the trial
court’s chambers before the hearing to let the trial court know that Clark’s attorneys would not
be in attendance. By allowing counsel to call ahead and assert that they would not attend the
competency hearing and then deciding Clark’s competency in their absence, rather than requiring
Clark’s counsel to appear at the competency hearing and state their position on the record, the
trial court “played a part in preventing adequate representation” for Clark. Maslonka, 900 F.3d
at 280. Thus, this case is one in which “some state actor . . . played a part in preventing adequate
representation,” not one in which the lack of representation was attributable only to “the
counsel’s own failure to be present.” Id. at 279–80. Cronic therefore governs. Clark suffered a
“complete denial of counsel [at his competency hearing, which] mandates a presumption of
prejudice.” French, 332 F.3d at 436 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)).
And as the Supreme Court explained in Brecht v. Abrahamson, 507 U.S. 619, 629–30 (1993),

-- 12 of 14 --

No. 18-1640 Clark v. Lindsey Page 13
“deprivation of the right to counsel . . . requires automatic reversal of the conviction because [it]
infect[s] the entire trial process.”2
The majority glosses over a crucial distinction when it asserts that the dissent relies on
the fact that “our cases require relief,” rather than Supreme Court cases, as is required under
AEDPA. Maj. Op. at 5. As the Supreme Court has explained, “an appellate panel may, in
accordance with its usual law-of-the-circuit procedures, look to circuit precedent to ascertain
whether it has already held that the particular point in issue is clearly established by Supreme
Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013); see also Tolliver v. Sheets,
594 F.3d 900, 916 n.6 (6th Cir. 2010) (“We are bound by prior Sixth Circuit determinations that
a rule has been clearly established.”). Mitchell, French, and Caver all found it clearly
established under the Supreme Court’s precedent in Cronic that when the trial court proceeds
with a critical stage of criminal proceedings despite defense counsel’s total absence, the
defendant’s right to counsel has been violated. We are thus bound by our previous decisions in
Mitchell, French, and Caver concluding that, under AEDPA, a state court directly contradicts
Cronic when the state court finds no deprivation of counsel despite counsel’s total absence under
analogous scenarios. To adhere to these decisions, as we must, is not to measure the state court’s
decision against Sixth Circuit precedent, which would be improper under AEDPA—instead, it is
to respect Sixth Circuit precedent interpreting the scope of the Supreme Court’s decision in
Cronic. Mitchell, French, and Caver are all AEDPA cases holding that Cronic governs when the
trial court proceeds with a critical stage despite defense counsel’s total absence.
In sum, the Michigan Court of Appeals rendered a decision that “was contrary
to . . . clearly established Federal law, as determined by the Supreme Court of the United States”
in Cronic, when it held that Clark’s Sixth Amendment right to counsel was not violated at his
2The majority claims that this case is more like our decision in United States v. Brika, 416 F.3d 514, 525–
26 (6th Cir. 2005), than like Mitchell, French, and Caver, because in Brika, the trial court discussed its proposed
actions with defense counsel before providing jury re-instruction in counsel’s absence. In Brika, the trial court
engaged in a “fairly lengthy” discussion directly with defense counsel before providing jury re-instruction in
counsel’s absence. Id. at 521. In contrast, in this case, the trial court apparently did not speak directly with defense
counsel at all; at best, Clark’s counsel communicated their intentions with the trial court’s “office.” Moreover, the
contents and nature of the communication in this case are entirely unknown, outside of the trial court’s confusing
second-hand statements. Thus, while this distinction may have had some persuasive value in Brika, it does not hold
water in this case.

-- 13 of 14 --

No. 18-1640 Clark v. Lindsey Page 14
competency hearing. 28 U.S.C. § 2254(d). Clark’s attorneys were totally absent at the
competency hearing, and Cronic explains that the Supreme Court finds “constitutional error
without any showing of prejudice when counsel was . . . totally absent” during the proceeding at
issue. Cronic, 466 U.S. at 659 n.25. The Michigan Court of Appeals’ decision thus directly
contradicted Cronic, which this Circuit’s precedent demonstrates applies in this case. Because
Clark was denied counsel at a critical stage of the proceedings, he is entitled to habeas corpus
relief. For all of the foregoing reasons, I respectfully dissent.

-- 14 of 14 --