concurring.
I concur in the result, and in the majority opinion to the extent that it does not preclude a future panel from upholding as reasonable, under the deferential AEDPA standard, a reasoned state court opinion to the effect that a jury reinstruction might not amount to a critical stage under the reasoning of United States v. Cronic, 466 U.S. 648, 659 & n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Several factors make this a poor case in which to preclude such a holding in the future. First, only the most generous accommodation accorded pro se filings permits us even to conclude that petitioner adequately pursued in the state courts the issue of counsel’s absence at jury rein-struction. Second, the state court rejected the argument in the most cursory terms, leaving us with the slimmest of indications of its reasoning on the issue. Third, the district court’s factual finding that counsel was indeed absent at the time of jury reinstruction can be upheld only on the basis of a generous application of deference under the court’s clearly erroneous standard, as the record is remarkably opaque on the question. Fourth, it is not even clear that the state in its brief to this court did not waive any argument that jury reinstruction is a critical stage under Cronic. Given this state of the record, I concur in the majority’s result.
This case should not be read, however, to resolve the issue of whether it is ever possible to uphold, under the AEDPA standard, a reasoned state court holding that a defendant was not prejudiced by the absence of counsel at jury reinstruetion. French v. Jones, 332 F.3d 430 (6th Cir.2003), relied upon by the majority, does not necessarily require a negative answer to this question, because the state court *354decision in that case assumed that the jury reinstruction at issue was a critical stage. French, 332 F.3d at 436. Our holding in French thus does not require the conclusion that a state court could not reasonably (even if erroneously in our view) hold the contrary. Moreover, Supreme Court cases dealing with jury reinstruction do not require a negative answer, as those cases could reasonably be read to state a rule that is not of constitutional stature. Rogers v. United States, 422 U.S. 35, 39-40, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975) (analyzing giving of supplemental instructions to jury when defendant’s counsel was absent as violation of Rule 43 of Federal Rules of Criminal Procedure); Shields v. United States, 273 U.S. 583, 588-89, 47 S.Ct. 478, 71 L.Ed. 787 (1927) (observing that rule of orderly conduct of jury trial entitles defendant to be present from time jury is impaneled until it renders its verdict); cf. Rushen v. Spain, 464 U.S. 114, 117 n. 2, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (declining to decide whether trial judge’s ex parte communication with juror was error of constitutional dimension). But see Rushen, 464 U.S. at 118, 104 S.Ct. 453 (arguably citing Rogers as case involving constitutional deprivation).
To be sure, the Supreme Court has indicated that a “critical stage” denotes “a step of a criminal proceeding, such as an arraignment, that h[olds] significant consequences for the accused.” Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). If we assume that responding to a jury request to amplify a jury instruction inherently “holds significant consequences for the accused,” then it would arguably be unreasonable for a state court to conclude, where the defendant’s attorney was absent at that time, that the Constitution did not require a new trial. I would leave resolution of the issue, however, to a case in which the state court more clearly made such a determination, and where the state more clearly defended it.