How has the court treated the issue of prejudice in determining whether an error on page 1371 prejudiced the appellant?

Consistent with the requirement imposed by Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979), the district court next considered whether this error prejudiced the appellant. This consideration, in effect, embodies an effort to certify a question to this court. This effort is revealed by two positions the district court took with respect to the issue of prejudice.

Initially the district court indicated that no prejudice resulted from the errors of

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After thoroughly reviewing the record, we decline to choose between the alternatives presented to us by the district court. We are convinced that under either standard no prejudice within the meaning of Cooper v. Fitzharris, supra, exists. Moreover, we are by no means convinced that the district court's choices exhaust the possibilities. As we said in Cooper v. Fitzharris, supra at 1332, when the petitioner is not denied counsel but rather has counsel, omissions or commissions of counsel have an impact that "appears on the face of the record" and their effect "can be evaluated from that record with reasonable certainty." This strongly suggests that the proper test might well be whether the absence of prejudice is established with reasonable certainty. Should that be true we would have no difficulty in holding on the record before us that the absence of prejudice has been established with reasonable certainty.