jury’s verdict.” Brecht, 507 U.S. at 637, 113 S.Ct. 1710; see also Penry v. Johnson, 532 U.S. 782, 795, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (same). To the extent Atwood objects to the application of the “substantial and injurious effect or injury” harmless error standard in evaluating this claim, the objection is overruled. 3. Analysis a. Waiver Atwood’s first objection is directed at Judge Zoss’s finding that he waived his right to be present. In his Report and Recommendation, Judge Zoss found that because Atwood failed to request his presence when the trial judge communicated the information regarding the threat to the jury, and in the absence of any legal authority placing an affirmative duty on the trial judge to ensure his presence at this meeting, Atwood waived his h Cir.1961) (<HOLDING>), cert. denied, 369 U.S. 825, 82 S.Ct. 840, 7
holding that drug felony under state law can constitute an aggravated felony for federal sentencing guidelines purposes even if the same conduct would not constitute a felony under federal law recognizing that the right to be present can be waived in noncapital felony federal cases holding that defendants in noncapital trials have no constitutional right to present mitigating evidence in a separate penalty proceeding recognizing that immunity may be waived recognizing constitutional right to be present when sentence is imposed