UNITED STATES of America, Plaintiff-Appellee, v. Justin Metuchen GAMBA, Defendant-Appellant, 483 F.3d 942

MILAN D. SMITH, JR., Circuit Judge: Justin Metuchen Gamba was convicted and sentenced for witness tampering in violation of 18 U.S.C. § 1512(b). Gamba appeals the district court’s denial of his petition for relief filed under 28 U.S.C. § 2255. Specifically, Gamba argues that the district court erred in denying his § 2255 motion because it did not find Gam-ba’s appellate counsel ineffective when he failed to challenge on appeal the magistrate judge’s jurisdiction to preside over closing argument without Gamba’s personal consent. We affirm because the magistrate judge had proper jurisdiction over closing argument at Gamba’s trial. Defense counsel may waive a defendant’s right to have an

Article III judge conduct closing argument where the decision is one of trial tactics or strategy. FACTS AND PROCEDURAL HISTORY Gamba was charged with two counts of making false statements in violation of 18 U.S.C. § 1001, two counts of witness tarn-pering in violation of 18 U.S.C. § 1512(b), and one count of being an accessory after the fact in violation of 18 U.S.C. § 3. All of Gamba’s charges arose from his attempts to foil the prosecution of his girlfriend on drug and gun charges. He pleaded not guilty to all charges and the case was set for jury trial.

Gamba retained attorney Ed Sheehy to represent him at trial. Gamba’s trial lasted one day. After testimony concluded, Sheehy, without Gamba being present, and the Assistant United States Attorney, Joshua Van de Wetering, convened in the district court judge’s chambers to finalize jury instructions. After the instructions were finalized, Chief District Judge Molloy informed the parties that he had to pick his wife up from the hospital and suggested that the trial reconvene after he returned. The relevant portion of the trial transcript reads as follows: THE COURT: Let me tell you what the problem is that I’ve got.

I’ve got to pick my wife up at the hospital at 2:30 and run her home and then come back here. So what I’d like to do, if at all possible — and—shoot, it will be — 2:30, make sure you’re here at 2:30, because that’s when it will be. And it just may delay me a little bit. Do you have any objection? One thing that I could do is have Judge Erickson sit in on the argument and submit the case to the jury. I mean, I can instruct the jury, but then he would just preside and give it to the jury. MR. SHEEHY: Yeah, I have no objection to that.

THE COURT: I’ll leave it up to you guys and I won’t force you, I just have to— MR. SHEEHY: I understand. THE COURT: If they did things the way I try and run things, I could go over, pick her up and be back in half hour. MR. SHEEHY: I understand what you’re talking about; I have no problem doing that. MR. VAN de WETERING: I think that’s a great idea. (Whereupon, the Court picked up the phone and had telephone conversation with Magistrate Judge Erickson’s assistant.) THE COURT: So is that all right with you guys? MR. SHEEHY: Yeah. THE COURT: Is that all right with the defendant? MR. SHEEHY: Yeah, he won’t care.

THE COURT: So here’s what we’re going to do .... I’ll go in, instruct the jury, you get on your opening, you on yours and, hopefully, we can get it done. But if we’re running out of time at 2:30, I’ll take a break and then ask Judge Erickson to come in and just sit there for the balance of the argument and submit the instructions and Mary will swear in the bailiff and then send them off. Shortly thereafter, the trial reconvened in the courtroom with Gamba and the jury present.

Judge Molloy addressed the jury: THE COURT: I am going to have to leave at 2:30 because my wife had a medical procedure and I have to pick her up. So Judge Erickson, who is the magistrate judge, will come in and preside over the arguments of counsel in this case. They’ll start while I’m here, but we may take a real short break so that I can step off and he can come in. The parties have consented to that. (Emphasis added). Neither Gamba nor his counsel raised any objection to Judge’s Molloy’s announcement.

Judge Molloy exited the courtroom after instructing the jury and after counsel for the government had begun his closing argument. Magistrate Judge Erickson took the bench. Neither Gamba nor his counsel objected to the presence of Magistrate Judge Erickson, who made no comments or rulings during the time he presided over the closing arguments. At the conclusion of closing argument, Magistrate Judge Erickson submitted the case to the jury. The jury found Gamba guilty of witness tampering in violation of 18 U.S.C. § 1512(

b) and Gamba was later sentenced to thirty-three months imprisonment. Gamba did not object to the magistrate judge’s' presiding over closing argument after the jury handed down its verdict or when he was sentenced by the district court. Gamba’s petition for relief under 28 U.S.C. § 2255 comes after this court denied his first appeal for insufficiency of evidence. See United States v. Gamba, 76 Fed.Appx. 209 (9th Cir.2003).

The district court denied Gamba’s § 2255 motion on the grounds that Gamba’s counsel did not render ineffective counsel by consenting to the magistrate judge presiding over closing argument or by failing to raise the magistrate judge consent issue on appeal, but granted Gamba a certifícate of appeal-ability on the magistrate jurisdiction issue pursuant to 28 U.S.C. § 2253(c). JURISDICTION We have jurisdiction pursuant to 28 U.S.C. §§ 2253 and 2255. .

STANDARD OF REVIEW Whether the district court’s delegation of authority to a magistrate judge to preside over closing argument is proper under the Federal Magistrates Act is a question of law subject to de novo review. United States v. Colacurcio, 84 F.3d 326, 328 (9th Cir.1996). The district court’s denial of a 28 U.S.C. § 2255 motion is also subject to de novo review. United States v. Ware, 416 F.3d 1118, 1120 (9th Cir.2005). DISCUSSION The issue before us is one of first impression in this circuit.

Specifically, we address whether a district court judge may lawfully appoint a magistrate judge to preside over closing argument at a felony criminal trial if the defendant’s counsel has, for trial tactic or legal strategy purposes, agreed to such appointment. “The Federal Magistrates Act, 28 U.S.C. §§ 681-39, governs the jurisdiction and authority of federal magistrates.” United States v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir.2003) (en banc).

The Act allows the district court to assign magistrate judges certain enumerated duties, as well as any “additional duties as are not inconsistent with the Constitution and laws of the United States.” 28 U.S.C. § 636(b)(3). The Supreme Court initially examined the scope of the “additional duties” provision of the Act in Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), in the context of whether a magistrate judge had jurisdiction to preside over voir dire in a felony trial.

In Gomez, the Court determined the magistrate judge had exceeded his jurisdiction by conducting voir dire in a felony trial over the defendant’s objection. Id. at 876, 109 S.Ct. 2237. Because the Court found no reference to jury selection in the Federal Magistrates Act or its legislative history, it determined Congress did not intend to include jury selection within the § 636(b)(3) “additional duties” provision. Id. at 871-76, 109 S.Ct. 2237.

Two years later, faced with a conflict among the circuits in interpreting Gomez and applying the § 636(b)(3) catch-all “additional duties” provision, the Court decided Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991). Because the dissent relies on what we respectfully take to be a misreading of Peretz, we review its facts and holding at some length.

In Peretz, the facts were as follows: At a pretrial conference attended by both petitioner and his counsel, the District Judge asked if there was “[a]ny objection to picking the jury before a magistrate?” Petitioner’s counsel responded: “I would love the opportunity.” Immediately before the jury selection commenced, the Magistrate asked for, and received, assurances from counsel for petitioner and from counsel for his codefendant that she had their clients’ consent to proceed with the jury selection. She then proceeded to conduct the voir dire and to supervise the selection of the jury.

Neither defendant asked the District Court to review any ruling made by the Magistrate.... In the District Court, petitioner raised no objection to the fact that the Magistrate had conducted the voir dire. Id. at 925, 111 S.Ct. 2661 (citations omitted). On appeal from his conviction to the Second Circuit Court of Appeals, Peretz contended that the lower court had erred in assigning jury selection to the magistrate and that the Court’s decision in Gomez required reversal. The Court of Appeals disagreed, citing its earlier decision in United States v.

Musacchia, 900 F.2d 493 (2d Cir.1990), in which “the Second Circuit had affirmed a conviction in a case in which the defendant had not objected to jury selection by the Magistrate.” Id. at 926, 111 S.Ct. 2661. In order to illustrate the conflict among the circuits, the Supreme Court then quoted approvingly and at length from the Second Circuit’s Mu-sacchia opinion: Appellants additionally claim that Gomez states that a magistrate is without jurisdiction under the Federal Magistrates Act to conduct voir dire. We disagree.

Since Gomez was decided we and other circuits have focused on the ‘without defendant’s consent’ language and generally ruled that where there is either consent or a failure to object a magistrate may conduct the jury voir dire in a felony case. See [United States v. Vanwort, 887 F.2d 375, 382-383 (2d Cir.1989), cert. denied sub nom. Chapoteau v. United States, 495 U.S. 906, 110 S.Ct. 1927, 109 L.Ed.2d 290 (1990); United States v. Mang Sun Wong, 884 F.2d 1537, 1544 (2d Cir.1989), cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990); United States v.

Lopez-Pena, 912 F.2d 1542, 1545-1548 (1st Cir.1989) ] (not plain error to permit magistrate to preside since objection to magistrate must be raised or waived); Government of the Virgin Islands v. Williams, 892 F.2d 305, 310 (3d Cir.1989) (absent demand no constitutional difficulty under § 636(b)(3) with delegating jury selection to magistrate); United States v. Ford, 824 F.2d 1430, 1438-39 (5th Cir.1987) (en banc) (harmless error for magistrate to conduct voir dire where defendant failed to object), cert denied, 484 U.S. 1034, 108 S.Ct. 741, 98 L.Ed.2d 776 (1988); United States v.

Wey, 895 F.2d 429 (7th Cir.1990) (jury selection by magistrate is not plain error where no prejudice is shown). Id. (emphasis added). After noting that the holding in Gomez was “carefully limited to the situation in which the parties had not acquiesced at trial to the magistrate’s role” and had divided the Courts of Appeals, the Court commented that “[o]n the other hand, those courts had uniformly rejected challenges to a magistrate’s authority to conduct the voir dire when no objection to his performance of the duty had been raised in the trial court.” Id. at 928, 111 S.Ct. 2661.

After extolling the now essential role played by magistrate judges in helping district court judges handle their “bloated dockets,” id. at 928, 111 S.Ct. 2661, and concluding that with the defendant’s consent the constitutional analysis is successfully negotiated, it noted: The generality of the category of “additional duties” indicates that Congress intended to give federal judges significant leeway to experiment with possible improvements in the efficiency of the judicial process that had not already been tried or even foreseen.

If Congress had intended strictly to limit these additional duties to functions considered in the committee hearings or debates, presumably it would have included in the statute a bill of particulars rather than a broad residuary clause. Construing this residuary clause absent concerns about raising a constitutional issue or depriving a defendant of an important right, we should not foreclose constructive experiments that are acceptable to all participants in the trial process and are consistent with the basic purposes of the statute. Id. at 932-33, 111 S.Ct. 2661.

The Court next dealt with the issue of waiver in the context of magistrate jurisdiction. “We have previously held that litigants may waive their personal right to have an

Article III judge preside over a civil trial. The most basic rights of criminal defendants are similarly subject to waiver. Just as the Constitution affords no protection to a defendant who waives these fundamental rights, so it gives no assistance to a defendant who fails to demand the presence of an

Article III judge at the selection of his jury.” Id. at 936-37, 111 S.Ct. 2661 (citations omitted). The Court also found additional protections to defendants by virtue of the fact that “[t]he ultimate decision whether to invoke the magistrate’s assistance is made by the district court, subject to veto by the parties.” Id. at 937, 111 S.Ct. 2661.

Furthermore, “[bjecause the entire process takes place under the district court’s total control and jurisdiction, there is no danger that use of the magistrate involves a congressional attemp[t] to transfer - jurisdiction [to non-Article III tribunals] for the purpose of emasculating constitutional courts.” Id. (internal citations and quotation marks omitted). Finally, the.

Court held “that permitting a magistrate to conduct the voir dire in a felony trial when the defendant raises no objection is entirely faithful to the congressional purpose in enacting and amending the Federal Magistrates Act.” Id. at 940, 111 S.Ct. 2661. Following the Supreme Court’s focus on the defendant’s consent in Peretz, this court articulated a two-pronged test to determine whether a duty, not specified in the Act, may be delegated to a magistrate judge under the catch-all “additional duty” provision, § 636(b)(3). Reyna-Tapia, 328 F.3d at 1119.

We determined that whether a duty designated to a magistrate judge falls under § 636(b)(3) “depends, first and foremost, on whether the parties have consented, and secondly, on whether the additional duties bear some relation to the specified duties that magistrate judges can perform.” Id. (citation and internal quotation marks omitted). A. Consent The central issue before this panel is the degree to which a defendant himself must be involved in the decision to allow a magistrate judge to preside over closing argument.

Because Sheehy’s decision to consent to Magistrate Judge Erickson pre--siding over Gamba’s closing argument was a technical and strategic legal decision, we hold it is a decision that an attorney may properly make on a defendant’s behalf. Numerous courts have held that defense counsel may waive constitutional rights of the accused as part of the trial strategy or tactics. In Wilson v.

Gray, 345 F.2d 282, 286 (9th Cir.1965), cert. denied, 382 U.S. 919, 86 S.Ct. 288, 15 L.Ed.2d 234 (1965), for example, we determined that counsel may waive the accused’s Sixth Amendment right to cross-examination and confrontation as a matter of trial tactics or strategy. There, defense counsel stipulated that a matter could be heard on the transcript of the preliminary hearing, though each side retained the right to produce additional evidence at trial. Id. at 287.

We found that this decision was “deliberately made as a matter of trial tactics and strategy” because the accused was charged with assault with a deadly weapon, and the transcript of the witness testimony was “far more innocuous than the appearance of that witness before the state judge could ever have been.” Id. at 287-88 & n. 8. We concluded that in this instance the defendant’s “right to cross examine and confront prosecution witnesses was effectively waived by his counsel.” Id. at 288; see also United States v.

Plitman, 194 F.3d 59, 64 (2d Cir.1999) (“We therefore join the majority of circuit courts of appeals and hold that defense counsel may waive a defendant’s Sixth Amendment right to confrontation where the decision is one of trial tactics or.strategy that might be considered sound.”). Just as defense counsel made a tactical decision to waive his client’s Sixth Amendment right to cross-examination and confrontation in Wilson v.

Gray, Sheehy’s decision to consent to Magistrate Judge Erickson presiding over Gam-ba’s closing argument (to which Gamba made no objection when the agreement was announced' in open court) was also a strategic choice.

As Sheehy explained in a letter to Gamba, “if we had objected to Judge Erickson coming in and listening to the closing arguments, rather than Judge Molloy, Judge Molloy would have simply delayed the closing argument and I did not see the merit in doing that.” Based on the record before this court, it appears that Sheehy understood the nuances of the case, observed the jury, and made a strategic decision that a continuance would disadvantage his client. This is precisely the type of tactical decision that counsel is retained to provide. See Gideon v.

Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (emphasizing the importance of the knowledge and skill counsel brings to bear when rep-resénting a defendant in a criminal trial). Moreover, the Supreme Court in Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), explained that: An attorney undoubtedly has a duty to consult with the client regarding important decisions, including questions of overarching defense strategy. That obligation, however, does not require counsel to obtain the defendant’s consent to every tactical decision.

But certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant, this Court affirmed, has the ultimate authority to determine whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal. Concerning those decisions, an attorney must both consult the defendant and obtain consent to the recommended course of action. Id. at 187, 125 S.Ct. 551 (internal citations and quotation marks omitted) (emphasis added).

Although the Court did not provide an exhaustive list of “basic trial rights,” the Court did not list the right to an

Article III judge presiding over closing argument as one of those rights, and it cannot reasonably be said that such a “right” — if there is one at all — rises to the level of such basic and fundamental rights as deciding whether to plead guilty or appeal one’s conviction, particularly in light of Peretz. Thus, Gamba’s consent was not necessary for Sheehy to agree to Magistrate Judge Erickson presiding over closing argument.

Despite the fact that Sheehy made an appropriate tactical decision, the dissent interprets Peretz to require a defendant’s knowing, informed, and personal consent to a magistrate judge’s jurisdiction. Dissent at 950; see also United States v. Maragh, 174 F.3d 1202, 1206 (11th Cir.1999) (remanding the case to the district court for an evidentiary hearing on whether the defendant personally consented to a magistrate judge conducting voir dire in a felony criminal proceeding).

The dissent extrapolates this rule from two facts in Peretz: (1) the defendant and his counsel both attended the pre-trial conference where the counsel consented to the magistrate judge’s jurisdiction, and (2) in response to the magistrate’s question, counsel indicated she had defendant’s consent to proceed with jury selection. Dissent at 951-52 (citing Peretz, 501 U.S. at 925, 111 S.Ct. 2661). However, there is no express indication in Peretz that the defendant ever personally consented to the magistrate’s presence, or that the Court requires that such consent to be personally given.

Peretz, 501 U.S. at 936, 111 S.Ct. 2661 n. 2 (explaining the defense counsel’s duty to weigh the costs and benefits of a magistrate judge’s supervision of voir dire). Moreover, despite Justice Marshall’s dissent in Peretz, the Court declined to extend the express consent requirement found in 18 U.S.C. § 3401(b), which requires a defendant charged with a misdemeanor to expressly consent to be tried before a magistrate judge, to apply to a magistrate judge’s ability to perform “additional duties” under § 636(b)(3).

See Peretz, 501 U.S. at 947, 111 S.Ct. 2661 n. 6 (Marshall, J., dissenting) (arguing that the written and express consent requirements found in 18 U.S.C. § 3401 should have been applied to the § 636(b)(3) additional duties provision). We do not know, as suggested by the dissent, whether the Per-etz court “contemplated” that defendant’s consent must be personal, but it by no means required it. Dissent at 952-53.

The dissent also argues that because the magistrate judge lacks familiarity with the proceeding, allowing him to preside over closing argument risks “a fractured judicial approach and rulings inconsistent with prior proceedings.” Dissent at 954. This proposition actually reinforces our argument that such a_ decision is necessarily strategic and technical in. nature, and, therefore, best made by an attorney. New defendants have the training to permit them to appreciate the various legal concerns at issue when a magistrate judge is delegated authority to preside over closing argument.

Because an attorney understands the importance of consistency in a trial proceeding, he is best equipped to make an immediate determination as to the risks or benefits of accepting a magistrate judge as a substitute for a district court judge. Attorney Sheehy’s decision to allow a magistrate judge to preside over closing argument in Gamba’s trial was a strategic, technical legal decision and Gam-ba’s personal consent was not required.

Even if the dissent were correct and we were to hold that Gamba’s personal, knowing consent to the magistrate presiding over the closing arguments in his trial was required, he has waived his right to object to Magistrate Judge Erickson’s presence by failing to raise his objection when Judge Molloy announced the agreement of the parties, at the time of the jury verdict, at sentencing or in his first appeal. Under Peretz, Gamba’s failure to object clothed the magistrate with authority to preside over the closing arguments. B.

Additional Duties In addition to finding the required consent, we must determine whether closing argument “bear[s] some relation to the specified duties” that magistrate judges are already authorized to perform. Peretz, 501 U.S. at 930, 111 S.Ct. 2661. We hold that it does. In Peretz, the Court found that the Act’s “additional duties clause permits a magistrate to supervise jury selection in a felony trial provided the parties consent.” Id. at 933, 111 S.Ct. 2661 (internal quotation marks omitted).

The Court reasoned that the responsibility and importance of presiding over voir dire at a felony trial are comparable to the duties and responsibility that magistrate judges have in supervising entire civil and misdemeanor trials. Id.; see also 28 U.S.C. § 636(a) (with the parties’ consent, a district court judge may delegate the supervision of entire civil and misdemeanor trials to a magistrate judge).

The Peretz Court, as noted above, also encouraged the district courts to experiment in the use of magistrates to carry out functions not previously considered so long as the parties consent or the defendant fails to object. The reasoning the Court applied in Per-etz equally extends to closing argument. If a magistrate judge can conduct jury selection, then, logically, he can preside over closing argument as well. A magistrate judge who conducts a civil or misdemeanor trial necessarily must preside over closing argument.

Closing argument clearly bears a relation to specified duties magistrate judges are statutorily authorized to perform. Accordingly, where defense counsel consents to proceed before a magistrate judge for tactical or strategic reasons, there is neither a constitutional nor a statutory impediment to delegating closing argument in criminal cases to magistrate judges. See Reyna-Tapia, 328 F.3d at 1121. C.

Ineffective Assistance of Counsel Since we hold that the magistrate judge had jurisdiction in this case because of defense counsel’s consent due to trial strategy or tactics and the close relationship between presiding over closing argument and a magistrate judge’s statutorily specified duties, Sheehy’s conduct was not objectively unreasonable and Gamba cannot make the necessary showing of prejudice to show ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). CONCLUSION We affirm the district court’s denial of Gamba’s 28 U.S.C. § 2255 motion.

Where the decision is one of trial tactics or legal strategy, defense counsel may waive the defendant’s right to have an

Article III judge preside over closing argument without the defendant’s personal, informed consent. AFFIRMED. . While we have examined issues involving consent and magistrate jurisdiction, we have never specifically addressed the question posed in this appeal. See United States v. Reyna-Tapia, 328 F.3d 1114, 1119 (9th Cir.2003) (en banc) (holding a magistrate judge may conduct plea colloquies pursuant to Federal Rule of Criminal Procedure 11 if defendant consents); United States v.

Sanchez-Sanchez, 333 F.3d 1065, 1067 (9th Cir.2003) (finding the magistrate judge lacked authority to conduct a revocation proceeding because neither defendant nor his counsel consented to allowing the magistrate judge to preside). . Arguably, Gamba’s presence in court when Judge Molloy announced the agreement of the parties that the magistrate judge would preside over closing argument in his absence is comparable to Peretz’s presence in the pretrial conference. . The Supreme Court is habitually clear when a defendant’s personal and informed consent is required to waive a constitutional right.

See, e.g., Boykin v. Alabama, 395 U.S. 238, 241-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (explaining that a guilty plea and the waiver of right to counsel must be made “knowingly” and “intelligently” by the defendant). Notably, the Court did not include such language in Peretz. . In Peretz, the Court also found that "a defendant has no constitutional right to have an Article. Ill judge preside at jury selection if the defendant has raised no objection to .the judge’s absence.” Peretz, 501 U.S. at 936, 111 S.Ct. 2661.

Therefore, even if Gamba’s counsel had not consented to Magistrate Judge Erickson’s supervision of closing argument, any failure to object to Judge Molloy’s absence would have been deemed a waiver of Gamba’s right to an

Article III judge at critical stages of a felony criminal proceeding.