FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TROY TERRELL MCNEAL,
Petitioner-Appellant, No. 08-16472
v. D.C. No.
DARRELL G. ADAMS, Warden; 2:06-CV-01763-
ATTORNEY GENERAL OF THE STATE MCE-CMK
OF CALIFORNIA, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
February 10, 2010—San Francisco, California
Filed October 26, 2010
Before: Alfred T. Goodwin, Marsha S. Berzon, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Goodwin;
Concurrence by Judge Berzon
17817
17820 MCNEAL v. ADAMS
COUNSEL
Deanna F. Lamb, Central California Appellate Program, Sac-
ramento, California, for the petitioner-appellant.
Sean M. McCoy, Deputy Attorney General, Sacramento, Cali-
fornia, for the respondents-appellees.
OPINION
GOODWIN, Circuit Judge:
Petitioner Terrell McNeal (“Petitioner”) appeals the denial
of his petition for writ of habeas corpus. We have jurisdiction
under 28 U.S.C. § 2253. We affirm.
Petitioner argues that because his counsel was not present
at the hearing on the prosecution’s motion to compel a DNA
MCNEAL v. ADAMS 17821
sample, Petitioner was deprived of counsel at a “critical
stage” in the proceedings and his conviction must be reversed
without inquiry into prejudice. We issue this opinion to clarify
the difference between a stage at which the defendant has a
right to counsel, see Mempa v. Rhay, 389 U.S. 128, 134
(1967), and a critical stage requiring per se reversal if counsel
is absent, see United States v. Cronic, 466 U.S. 648, 658-59
(1984).
I. Factual and Procedural Background
On May 29, 2000, Petitioner molested his girlfriend’s
fourteen-year-old daughter in the back seat of a car.1 The
police recovered DNA evidence from the sanitary pad worn
by the victim on that day. Petitioner was charged with sexual
offenses, and the court appointed the public defender. Peti-
tioner pled not guilty.
The prosecution moved to compel Petitioner to provide a
DNA sample, and the court set a hearing date of August 10,
2000. The prosecution did not include proof of service on the
public defender. Defense counsel did not file a written opposi-
tion to the motion or appear at the August 10, 2000 hearing.
Therefore, the court continued the matter until August 11,
2000. On August 11, 2000, defense counsel again failed to
appear. The court granted the motion and directed the clerk to
leave a telephone message informing defense counsel that the
motion had been granted.
On August 14, 2000, Petitioner and defense counsel
appeared before the court to set an additional appearance.
1
The facts are taken from the unpublished opinion of the California
Court of Appeal. “In a proceeding instituted by an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of a
State court, a determination of a factual issue made by a State court shall
be presumed to be correct.” 28 U.S.C. § 2254(e)(1); Taylor v. Maddox,
366 F.3d 992, 999 (9th Cir. 2004).
17822 MCNEAL v. ADAMS
Defense counsel did not object to the granting of the motion
to compel a DNA sample, nor did she claim she had not
received notice of the motion prior to the hearing. On August
16, 2000, a technician at the jail collected a DNA sample
from Petitioner. Petitioner’s DNA matched the DNA evidence
collected from the victim’s sanitary pad.
The court held a hearing on the admissibility of the DNA
evidence and ruled that the evidence was admissible. At trial,
Petitioner was represented by appointed counsel and separate
appointed DNA counsel. The jury found Petitioner guilty of
assault with intent to commit rape, sexual battery, and three
counts of lewd and lascivious conduct upon a fourteen-year-
old child.
Petitioner filed a direct appeal in which he argued that his
counsel was ineffective for failing to appear at the hearing and
his conviction must be reversed per se without inquiry into
prejudice. The California Court of Appeal affirmed on the
ground that the hearing was not a critical stage and Petitioner
suffered no prejudice. The California Supreme Court denied
Petitioner’s petition for writ of certiorari.
Petitioner filed a petition for writ of habeas corpus in Cali-
fornia Superior Court. He claimed, inter alia, that his trial
counsel was ineffective for failing to appear at the hearing and
his appellate counsel was ineffective for failing to establish
that the hearing was a critical stage. The California Superior
Court denied Petitioner’s claims as barred because the issue
of critical stage was decided on direct appeal. The court con-
cluded in the alternative that the hearing was not a critical
stage and Petitioner suffered no prejudice. The California
Court of Appeal and the California Supreme Court summarily
denied subsequent petitions raising the same claims.
II. Discussion
[1] The Sixth Amendment requires that a defendant be pro-
vided counsel “at every stage of a criminal proceeding where
MCNEAL v. ADAMS 17823
substantial rights of a criminal accused may be affected.”
Mempa, 389 U.S. at 134. A petitioner claiming a Sixth
Amendment violation ordinarily must prove the absence of
counsel prejudiced his defense. See Strickland v. Washington,
466 U.S. 668, 687 (1984); Rushen v. Spain, 464 U.S. 114, 119
n.2 (1983) (per curiam). However, in United States v. Cronic,
466 U.S. at 659, the Court held that prejudice must be pre-
sumed if counsel is absent from a “critical stage” in the pro-
ceedings. The Court has not provided a list of Cronic critical
stages. United States v. Benford, 574 F.3d 1228, 1232 (9th
Cir. 2009).
[2] Petitioner argues that a hearing on a motion to compel
a DNA sample is a Cronic critical stage for which we must
presume prejudice if counsel is absent.
A. Exhaustion
Respondent argues that Petitioner did not exhaust his criti-
cal stage argument in state court. Respondent acknowledges
that the state court ruled on the issue, but argues that Peti-
tioner “did not squarely assert that the hearing was a critical
stage in his state appeal.”
When reviewing state court denials of direct appeals or
denials of petitions for writ of habeas corpus, we look through
the summary dispositions to the last reasoned decision. Shack-
leford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).
Here, the last reasoned decision on Petitioner’s direct appeal
is from the California Court of Appeal, and the last reasoned
decision on Petitioner’s state petitions for writ of habeas cor-
pus is from the California Superior Court.
On direct appeal, the California Court of Appeal addressed
whether the hearing was a critical stage, and concluded it was
not:
[Petitioner] claims that counsel abandoned him at the
hearing on the motion which constituted an “actual
17824 MCNEAL v. ADAMS
denial” of his right to counsel which is reversible per
se.
....
[Petitioner] cites King v. Superior Court (2003)
107 Cal. App. 4th 929, 950 in support of his claim
that a critical stage includes a pretrial hearing on a
motion. King is distinguishable. . . .
Here, [Petitioner] was represented by counsel
except for the failure of counsel to appear at the
hearing on the prosecution’s motion to compel sam-
ples for DNA analysis. [Petitioner] has failed to
demonstrate that counsel’s nonappearance occurred
at a critical stage in that [Petitioner]’s counsel
appeared subsequently and did not challenge the
order which had not yet been acted upon.
Likewise, the California Superior Court concluded on
habeas review that the hearing was not a critical stage:
Petitioner next claims that his [Sixth Amendment
right was] violated when the trial court granted the
prosecution’s motion to compel the DNA sample
outside of the presence of [P]etitioner and his coun-
sel. Petitioner claims this was a critical stage of the
prosecution, and that a violation of it was prejudicial
per se.
....
. . . [P]etitioner is incorrect that denial of the right
to be present and to have counsel present is prejudi-
cial per se. Rather, denial of the right to be present
and have counsel present has long been held to be
subject to harmless error review analysis . . . .
MCNEAL v. ADAMS 17825
[3] Thus, the state court has ruled on this issue, and it is
ripe for review. See Picard v. Connor, 404 U.S. 270, 275
(1971) (stating that the purpose of the exhaustion requirement
is to give a state the initial opportunity to address alleged vio-
lations of its prisoners’ federal rights).
B. Merits
Under the Antiterrorism and Effective Death Penalty Act of
1996, we may grant an application for writ of habeas corpus
only if the state court decision was contrary to, or involved an
unreasonable application of, clearly established federal law as
determined by the Supreme Court, or was based on an unrea-
sonable determination of the facts in light of the evidence
presented in the state court proceeding. 28 U.S.C. § 2254(d).
A state court decision is contrary to clearly established federal
law if it arrives at a conclusion of law opposite to that of the
Supreme Court or reaches a result different from the Supreme
Court on materially indistinguishable facts. Taylor v. Lewis,
460 F.3d 1093, 1097 n.4 (9th Cir. 2006). A state court deci-
sion involves an unreasonable application of clearly estab-
lished federal law if it correctly identifies a governing rule but
applies it to a new set of facts in a way that is objectively
unreasonable, or if it extends, or fails to extend, a clearly
established legal principle to a new set of facts in a way that
is objectively unreasonable. Id. An unreasonable application
of federal law is different from an incorrect application of fed-
eral law. Id.
[4] In this case, the California direct appeal and California
habeas corpus decisions that the hearing was not a Cronic
critical stage are not contrary to clearly established federal
law as determined by the Supreme Court. Both parties
acknowledge that the Supreme Court has not determined
whether a hearing on a motion to compel a DNA sample is a
critical stage. Thus, the state court decisions are not contrary
to clearly established federal law. See Knowles v. Mirzayance,
129 S. Ct. 1411, 1419-20 (2009).
17826 MCNEAL v. ADAMS
[5] The state-court decisions also do not involve an unrea-
sonable application of the general principles of Cronic or
other Supreme Court precedents. Critical stages involve “sig-
nificant consequences” to the defendant’s case. See Bell v.
Cone, 535 U.S. 685, 695-96 (2002). No such consequences
are present in this case. Petitioner’s counsel appeared subse-
quent to the hearing but before the DNA sample was col-
lected, and could have objected at that time if she believed
there was a basis for denying the motion.2 Counsel also had
an opportunity to argue at the admissibility hearing that the
DNA evidence should not be admitted at trial. Thus, a state
court could reasonably conclude that the taking of DNA sam-
ples is similar to taking handwriting exemplars and obtaining
other physical evidence such as “fingerprints, [a] blood sam-
ple, clothing, hair and the like,” United States v. Wade, 388
U.S. 218, 227-28 (1967), which are subject to meaningful
challenge through the adversary process, and thus not Cronic
stages. See United States v. Lewis, 483 F.3d 871, 874 (8th Cir.
2007) (citing cases). Accordingly, the hearing involved no
significant consequences to Petitioner’s case, and the state-
court decisions rejecting Petitioner’s critical stage argument
do not involve an unreasonable application of Supreme Court
precedent.
[6] The state-court decisions that Petitioner’s Sixth
Amendment right to counsel was not violated under the Str-
ickland prejudice inquiry are not contrary to, or an unreason-
able application of, clearly established federal law. See Wright
v. Van Patten, 552 U.S. 120, 125-26 (2008) (applying Strick-
land because the habeas corpus petitioner did not establish
that he was denied counsel at a Cronic critical stage). Assum-
ing, without deciding, that Petitioner had a right to counsel,
he suffered no prejudice from the lack of counsel. His counsel
2
Petitioner argues, for the first time on appeal, that the record does not
show that his trial counsel had notice of the motion. However, Petitioner’s
objection to the magistrate’s report expressly concedes that his trial coun-
sel had notice of the motion.
MCNEAL v. ADAMS 17827
had an opportunity to object before the DNA sample was col-
lected and again before the evidence was introduced at trial.
As the magistrate noted, “It appears that trial counsel did not
argue against the trial court’s order granting the motion
because there would have been no basis upon which to do so.”
Thus, the state-court decisions are not contrary to, or an
unreasonable application of, Strickland. See Strickland, 466
U.S. at 687; see also Berghuis v. Thompkins, 130 S. Ct. 2250,
2264 (2010) (determining that, because a habeas petitioner’s
claim failed under de novo review, it necessarily failed under
AEDPA’s deferential review).
Therefore, the state-court decisions are not contrary to, or
an unreasonable application of, clearly established federal law
as determined by the Supreme Court.
[7] Moreover, we conclude on the merits that this hearing
was not a Cronic critical stage. See Knowles, 129 S. Ct. at
1420 (2009) (explaining that a habeas petitioner’s claim,
which failed under AEDPA, would fail even under de novo
review). Taking handwriting exemplars is neither a critical
stage nor a stage giving rise to the right to counsel. Gilbert v.
California, 388 U.S. 263, 267 (1967). Post-indictment photo-
graphic lineups and the scientific analysis of blood or finger-
print samples likewise are not critical stages and do not create
a right to counsel. United States v. Ash, 413 U.S. 300, 321
(1973); United States v. Wade, 388 U.S. 218, 227-28 (1967).
The Eighth Circuit has directly addressed whether a defendant
has the right to counsel before a DNA sample is collected, and
concluded a defendant does not. See United States v. Lewis,
483 F.3d 871, 874 (8th Cir. 2007).
[8] The Ninth Circuit uses a three-factor test for determin-
ing whether a proceeding is a Cronic critical stage: (1)
whether the failure to pursue strategies or remedies results in
a loss of significant rights, (2) whether counsel would be use-
ful in helping the defendant understand the legal issues, and
(3) whether the proceeding tests the merits of the defendant’s
17828 MCNEAL v. ADAMS
case. Hovey v. Ayers, 458 F.3d 892, 901 (9th Cir. 2006); see
also United States v. Benford, 574 F.3d 1228, 1232 (9th Cir.
2009). Any one of these factors may be sufficient to make a
proceeding a critical stage. Hovey, 458 F.3d at 901-02.
[9] In this case, the factors lead to the conclusion that this
hearing was not a critical stage. Petitioner’s rights were not
lost for the reasons discussed above, and counsel was not
needed to help Petitioner understand the legal issues because
no basis existed for denying the motion. Accordingly, we con-
clude the hearing was not a critical stage.
III. Conclusion
The decisions of the California courts were not contrary to,
nor did they involve an unreasonable application of, clearly
established federal law as determined by the Supreme Court.
Accordingly, the district court denial of Petitioner’s petition
for writ of habeas corpus is AFFIRMED.
BERZON, Circuit Judge, concurring in the judgment:
I agree with the majority that the state court decisions were
not contrary to, and did not involve an unreasonable applica-
tion of, clearly established federal law as determined by the
Supreme Court, and were not based on an unreasonable deter-
mination of the facts in light of the evidence presented. 28
U.S.C. § 2254(d). Unlike the majority, however, I would stop
with that conclusion. It is unnecessary to decide whether the
August 11, 2000 hearing was, in fact, a “critical stage” in
McNeal’s criminal proceedings.
Moreover, in addressing this issue, I believe the majority
confuses the “critical stage” standard applicable to United
States v. Cronic, 466 U.S. 648 (1984) with the separate “criti-
cal stage” standard applicable to all claims under the Sixth
MCNEAL v. ADAMS 17829
Amendment. Put simply, the majority erroneously treats the
two as the same, when they are not. The standard applicable
in the first instance is “any stage of a criminal proceeding
where substantial rights of a criminal accused may be affect-
ed,” Hovey v. Ayers, 458 F.3d 892, 901 (9th Cir. 2006) (cita-
tion and quotation marks omitted), while that applicable in the
second instance is whether the denial of counsel at a given
stage holds such “significant consequences” for the overall
proceeding that a prejudice inquiry is impractical, see Mus-
ladin v. Lamarque, 555 F.3d 830, 839-40 (9th Cir. 2009).
The error may be understandable, as the case law uses the
term “critical stage” in both instances. See Cronic, 466 U.S.
at 659; United States v. Ash, 413 U.S. 300, 316 (1973). And
at least one case from this Court seems not to have noticed the
difference, and so used the same standard for both. United
States v. Benford, 574 F.3d 1228, 1231-33 & n.2 (9th Cir.
2009). But the questions — whether a defendant is entitled to
a lawyer during a certain proceeding and whether the denial
of a lawyer gives rise to automatic reversal of the entire con-
viction because of the difficulty of determining the impact a
lawyer may have had — are obviously distinct.
One reason melding the two questions, as the majority
does, matters is that it can lead to a tendency to deny the right
to counsel at some relatively peripheral proceedings because
of a perception that the result of such recognition is necessar-
ily a Cronic reversal if the right is denied.
The majority states at the outset that it is going to clarify
the distinction between the two questions and standards. Maj.
op. at 17821. But then it only further contributes to the confu-
sion. I respectfully concur only in the judgment.