dissenting.
I would hold that Henderson has not established grounds entitling him to federal habeas corpus relief.
As I read the record, there was no illegal entry into the jury room by the trial judge and counsel. Henderson’s trial counsel testified as follows at the habeas corpus hearing:
[Wjhat happened was we held this case in the municipal courtroom because the circuit courtroom was under some type of remodeling process. And when the time came for the jury to deliberate, there was no jury room, so everybody left the courtroom and left them in the courtroom.
Short of marching the jurors up the hill out of the courtroom-cum-jury room and then back down into the courtroom, there *1453was no way that the judge and counsel could have responded to the jury’s inquiry without entering the room in which the jury was present. Had the exodus and reentry procedure been carried out, Henderson would have no claim that the trial court violated Arkansas law (Ark.Stat. Ann. § 43-2139 (Repl.1977)).
But let us assume that the trial court violated the statute by entering the jury room. Although the Supreme Court of Arkansas has held that violation of the statute can be reversible error, Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986), not every violation of the statute results in prejudice so great as to require reversal. See Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973). Likewise, we have held that violation of the state statute does not necessarily rise to the level of a constitutional violation. Isom v. Lockhart, 847 F.2d 484 (8th Cir.1988).
We turn, then, to the evidence regarding the complained-of exchange between the trial court and the jury. The motion for new trial alleged in part that the trial court’s appearance before the jury “was not as a result of the jury requesting additional instructions but was an effort on the part of the Court to hurry the deliberations or to at least avoid a hung jury.” When questioned by Henderson’s counsel at the habeas corpus hearing whether he had verified that the motion for new trial was accurate and correct, trial counsel answered that “[t]o the best of my knowledge and belief it was. I did not ask ... I did not hear the jury ask for instruction. All I was told was that they did and we are going in to instruct them.”
During cross-examination by counsel for the state, trial counsel gave the following answers:
Q. Do you recall ... this is concerning the instructions to the jury that you were questioned about. Do you recall what that ... what that concerned?
A. It was in the nature of what the parole process would have been.
Q. And do you recall what they were instructed?
A. The judge just kind of ... he just kind of laughed and said, “I can’t tell you the answer to that,” or words to that effect. I can’t give you that information.
Q. So the instructions that ... that is the subject of this motion then was not the jury instructions as we know them?
A. Oh, no, no. The jury instructions that were given prior to the jury retiring to deliberate their verdict was given right there in the open courtroom.
Q. And Mr. Henderson was present during that time—
A. And Mr. Henderson was present at that time.
Q. So the subject of this motion is a question that was asked by the jury that the judge stated he could not tell them anything about.
A. Yes.
Trial counsel went on to testify that to the very day of the evidentiary hearing he did not think that Henderson had any meritorious grounds for appeal.
At most, Henderson has established only a technical violation of Ark.Stat.Ann. § 43-2139 (Repl.1977). It is inconceivable to me that the appellate courts of Arkansas would have reversed Henderson’s conviction on the basis of this showing. Likewise, Henderson has not established a violation of his federal constitutional rights of due process, confrontation of witnesses, and the assistance of counsel. Unlike the situation in Blackwell v. Brewer, 562 F.2d 596 (8th Cir.1977), there is nothing in the record that would support a finding that Henderson suffered prejudice as a result of being absent during the exchange that occurred between the trial court and the jury during the course of the jury’s deliberations. It is highly unlikely that Henderson’s absence during this time resulted in the jury’s drawing any inferences adverse to him, nor does it come readily to mind that Henderson could possibly have offered any assistance to his counsel that could possibly have been to his benefit in terms of the ultimate question of guilt or innocence.
*1454I would reverse the order appealed from and would remand with directions to dismiss the petition.