F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O S H U A J A M E S F R

O S T , Petitioner-Appellant

,

v

.

R O N V A N B O E N I N G , Superintendent, Respondent-Appellee

. N o. 11-35114

D.C. No. 2:09-cv-00725- T SZ

OPI NI ON

A ppeal from the United States District Court for the W e stern District of W ashing ton Thomas S. Z illy , Senior District J udg e, Presiding

Arg ued and Submitted En B anc J une 26, 2013—Seattle, W ashing ton

F iled April 29, 2014

B efore: Alex Koz inski, Chief J udg e, and Stephen Reinhardt, Sidney R. Thomas, Kim McL ane W ardlaw, Richard A. Paez , Richard C. Tallman, J ohnnie B

. Rawlinson, J ay

S. B y bee, Consuelo M. Callahan, Milan D. Smith, J r. and J acqueline H. Ng uy en, Circuit J udg es.

O pinion by J udg e Thomas; Dissent by

J udg e TallmanF R O S T V

. V A

N B O E N I N G 2

SUMMARY *

Habeas Corpus

The en banc c ourt reversed the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition challeng ing the trial

c o u r t ’ s decision to preclude defense counsel from making a reasonable doubt arg

ument to the jury

.

The en b a

nc court held that the trial cour t infring ed petitioner’s Six th and F ourteenth Amendment rig hts b y precluding c ounsel from making a reasonable doubt a r g u ment to the jury

, that petitioner was deprived of his rig h t to demand that the jury find him g uilty of all the elements of the crime, that the b u r den o f proof was unconstitutionally shifted, a nd that petitioner’s rig h t to present a closin g arg ument was violated. The en banc court h eld that thes e e r ro rs were

s tructural a

nd not subject to harmless e rror review. T h e e n banc court reversed and remanded with instruc t ions for the district court to conditionally g rant the writ.

J udg e Tall m an dissented, joined b y J udg e s Rawlinson, B y bee, Callahan, and M. Smith. J udg e Tallma n w o uld conclude that the state court’s interpretation of Herring v

. N ew Y ork

, 4 22 U .S. 853 (1975) (holding that preclusi o n o f closing arg ume n t in criminal defense trial is structural constitutional error), as inapplicable to reverse p et itioner’s convictions, was neither contrary to nor an unreasonable application of clearly established federal la w , and that this

c o u r t is c ompelled under the Anti-Terrorism and Effective

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.F R O S T V

. V A

N B O E N I N G 3

Death Penalty Act to gr an t d eference to the state court’s decision.

COUNSEL

Erik B

. L evin, B erkeley

, California, for Petitioner-Appellant.

J ohn J

. Samson, Assistant Attorney General, Oly mpia, W a shing ton, for Respondent-Appellee.

OP INION

THOMAS, Circuit J udg e :

The Supreme Court h as instructed that preclusion o f closing arg ument in a criminal defense trial is struct u ra l

c o n s t itutional error. H

erring v. New Y

ork

, 422 U.S. 8 5 3
, 864–65 (1975). J oshua F rost had two leg itimate d efenses to criminal charg es, but the state trial court only pe r m i tted his

c o u n s e l to arg u e one theory in closing

, and the cour t specifically prohibited c ounsel from arg ui n g t h at the State had not met its burden of proof. B ecause this conceded

con s t i t utional error requires a retrial under Herring
, we reverse the district court’s denial of federal habeas relief.

I

F rost is serving a 5 5 -y ear priso n sentence for his convictions stemming from his involvement in five robberies that occurred o ver eleven day s. I n the first robbery , t hree

m e n

— M a t t h e w W i l l i a m s , A l e x a n d e r S h e l t o n , a n dF R O S T V

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N B O E N I N G 4

F rost—robbed and b urg lariz ed the home of an elderly couple. F irearms were used, thoug h F r ost testified he did not carry a g un. I n the second robbery

, F rost acted as the driver for Shelton a nd W illiams, wh o robbed a Taco Time restaurant whi l e a r med with g uns. I n the third robbery

, Shelton, W illiams, F rost, and another man p articipated in the robbery of an adult vide o s t ore. F r ost ag ain acted as the driver a nd performed survei llance prior to the robbery by entering the
store and asking about the closing ti m e a n d other questions. I n the fourth robbery

, F rost acted as driver for W illiams and Shelton, who robbed a 7 /Eleven at g unpoint. During this incident, Shelton threatened tw o customers in the store’s
p a r king lot with a g un. F inally

, immediately following the 7/Eleven robbery

, Fr o st drove Shelton and W illiams to a store, which they also robbed using firearm s

. D uring this robbery

, an e mploy ee was shot in the hand. Police a r rested F rost, Shelton, and W illiams three d a y s l a t er. F rost was charg ed with six counts of robbery

, one count of b urg lary

, one c ount of attempted robbery

, and three count s o f assault. Most charg es included firearms enhancements.

F rost a dmitted his involvement in the incidents in his trial testimony and in recorded statements to police, which were play ed at trial. The defense theory of the case was two-fold: there was reasonable d oubt as to whether F rost’s involvement

rose to the level o f an accomplice and, reg ardless, any actions he took were under duress. Defense c ounsel ex plained both theori e s i n his opening statement a nd developed both throug hout the trial.

During the jury instruction conference, the tri al judg e

res p o n d ed to F rost’s proposed instruction by o bserving that “duress is a defense which requires the defendant to admit the elements of the crime before it can be raised.”F R O S T V

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N B O E N I N G 5

After some discussion about the instruction, the following colloquy occurred:

MR. W AGNI L D [ prosecutor] : My concern is

we are g oing to see him g et up in closing a nd

ar gue, first of all, we haven’t proved accomplice liability f

or any of them and then
say ing duress.

THE COURT: I f h e say s that[ ,] the duress instruction will come out of the case.

MR. STI M M EL [ defense counsel] : Ex cuse me, y our Honor?

THE COURT: You c a n n o t arg ue to the jury that the state hasn’t proved accomplice liability and claim a d

uress d e fense. You
must opt for one or the other. R i k e r is very clear on this. You must a dmit the elements o f the offense have been proved b efo r e y ou can

use the duress o ffense [ sic]

. F ortunately for
y ou, y our clien t just g o t on the stand a nd admitted every

thing ex c e p t the assault in the second deg ree charg e. He admitted h e k new about it, he participated in every one of these
events and he at least assisted by being the g et away driver ex cept for the ass a u l t in the second deg ree charg e. I can’t be l i e ve y ou would disreg ard y our client’s testimony

.

MR. STI MMEL : B ut am I not permitted to arg ue in the alternative, using duress a nd failure to prove in the alternative?F R O S T V

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N B O E N I N G 6

THE COURT: No. Duress is an affirmative defense. To q uote Riker

, a defense of duress admits that the defendant c ommi t t ed the unlawful act but pleas an ex cuse for doing so. You may not arg ue b oth. Ri ker wouldn’t stand u p if that w as the ability the defense has. Once th e s tate proves its c h arg es[ ,] the defense say s it is proved and that is when y ou g et an opportunit y to raise this affirmative defense and pro v e i t b y a preponderance. I don’t see any other way to write it. There a re pag es and pag es about this.

The judg e concluded the discussion by ag ain warning defense counsel not t o t ry to arg ue b oth theories in closing

. T h us, defense c ounsel w as precluded from arg uing re a s o n a b l e doubt, forced to at least tacitly a dmit the elem en ts of the crimes, and then put to the task of p roving the duress defense by a preponderance of the evidence.

As a result, defense counsel never arg ued in closing that the State had failed to meet its b u r den of proof. He a rg u ed only that F rost acted under duress due to threats from W illiams. Counsel a dmitted that the duress defense would
not a bsolve F rost of one, and possibly two, of the robberies.

I n his rebuttal, the prosecutor pounced on the f a i l ure o f defense counsel to a

rg ue that the State hadn’t p r o v e n the elements of the crime, calling it “noticeably absent,” a nd
say ing :

B e cause if Mr. Stimmel had p ointed y ou to the law and p ointed to the elem e nts of the offenses and he pointed to the f i r earmF R O S T V

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N B O E N I N G 7

instruction and made his arg ument y o u would realiz e that his arg ument is pho ney , his
arg uments don’t match up w i th what the law is and that is really

what we are here for.

The jury c o n v icted F rost o f all c harg es e x cept for o ne assault. The court sentenced him to a l m ost 55 y e ars in prison. The W ashing ton Cou r t o f Appeals affirmed F rost’s convictio n s

. S

tate v. Frost
, 128 W ash. App. 1026 (2005) (unpublished).

The W ashing ton Supreme Court nar rowly affirmed on different g rounds. State v. Frost , 161 P.3d 361, 364 (W a sh. 2007) (en b a n c )

. The court h eld that the trial judg e misinterpreted its p recedent to preclude F rost from ar g uing bo t h that the prosecution f ailed to meet its burden of proof bey ond a reasonable doubt and that he a cted under duress. Id.
at 366–67. The court noted that defe n d a n t s may g enerally present inconsistent defenses so long as they are supported b y evidence. Id. at 365. The court found an “evidentiary basis, however slim, for c o unsel to arg u e t h a t the State failed to prove F r ost p articipated in each of his accomplices’ criminal
acts w ith adequate knowledg e o f p romotion or facilitation.” Id. at 368. This a

rg ument was “best illustrated b y the robberies in which F rost was only a d r i ver and remained in the car.” Id. at 368–69.

B y p reventing defense counsel f r o m making b oth of his leg itimate arg uments in his c l o s i n g , the court unanimously held, the trial judg e violated F rost’s F ourteenth Amendment rig ht to d ue process and Si x th Amendment rig ht to counsel. Id. a t 365–66, 368–69. “[ I ] n accordance with due process, the State was required to p rove the elements of accomplice liability

, bey ond a reasonable doubt, as to each offense.” Id.F R O S T V

. V A

N B O E N I N G 8

at 3 68 (citing In re W

inship

, 397 U.S. 358, 364 (1970)). B y preventing defense counsel from arg uing reasonable doubt in closing

, the trial judg e “lessened the State ’ s b u r den to some deg ree” a nd “infring ed upon F rost’s due process rig hts.” Id. The trial court’s “undue l i m i tation on the scope of defense counsel’s closing arg ument” also violated F rost’s Six th Amendment rig ht to counsel under Herring
, 422 U.S. at 862, which held that a defendant is entitled to closing arg ument. Frost
, 161 P.3d at 365–66, 369.

Nonetheless, a b are majority o f t h e court held this error

was “ not so eg r eg ious as to require automatic reversal,” id. at 370, and fou n d t he error h armless, id. at 369–71. F our j u s tices d issented, arg u ing that preventing d efense couns el from arg uing reasonable dou b t was structural error under Herring

. Id. at 371–72 (Sa n d e r s, J
., dissenting ). The Supreme Court denied certiorari. F rost v. W

a shington

, 552 U.S. 1145 (2008).

F rost filed a federal habeas petition, which the district
court denied. Frost v. Van Boening
, No. C09-725Z
, 2 011 W L 486198 (W .D. W ash. F eb. 4, 2011). A divided panel of this
court affirmed. Frost v. V an Boening
, 692 F .3d 924 (9th Cir. 2012). A majority of the non-recused active judg es voted to

r e h e ar the c ase en banc

. Frost v

. V a n Boening
, 707 F .3d 1143 (9th Cir. 2013).

I I

As the W ashing ton Supreme Co u r t correctly concluded, the state trial court unconstitutionally precluded defense counsel f rom arg uing reasonable doubt, under both H e r ring

a n d W inship

. The only question is whether theseF R O S T V

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N B O E N I N G 9

constit u t i onal violations are subject to harmless error analy sis.

The Supreme Court has divided constitutional errors into
two categ ories: trial errors, which are subject to harmless

error r eview, and structural errors, which require au t omatic reversal. Arizon a v

. Fulminante

, 499 U.S. 279, 306–10 (1991). “ [ M ] o s t constitutional e rrors can b e harmless.” Id.
at 306; see also id. a t 306–07 (citing ex amples o f n o n

structural errors). These e rr o r s a re deemed trial errors “because the errors ‘occurred during presentation o f the case to the jury ’ and their effect may ‘be quantitatively assessed in the contex t of other evidence presented in order to determine whether [ they were] harmless.’” United States v. GonzalezLopez
, 5 48 U.S. 140
, 148 (2006) (quoting Fulminante

, 499 U.S. at 307–08).

I n contrast, structural errors “defy ana ly sis by harmlesserror standards because they affect the f r a mework within which the trial proceeds, and are not simp l y an error in the trial process itself.” I

d

. (internal qu o t ation marks a nd alteration o mitted). Structural e rrors include the denial o f counsel of one’s choice, i d

. at 1 50; racial discrimination in
g rand jury s e l e c t i on, Vasquez v. H illery

, 4 7 4 U.S. 254, 263–64 (1986); a

nd p roceeding before a conflicted or biased judicial officer, Tumey v. Ohio

, 273 U.S. 510, 535 (1927). See also W

ashington v

. Recuenco
, 548 U.S. 212, 218 n.2 (2006) (listing other ex amples).

Under 28 U.S.C. § 2254(d)(1), a federal court may “g rant

a state prisoner’s application for a writ of habeas corpus if the
state-court adjudication pursuant to which the prisoner is h eld

r e s u lted in a decision that was contrary to, or involved an unreasonable application of, clearly established F ederal law,F R O S T V

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N B O E N I N G 10

as determined by the Supreme Court of the United States.” Howes v. F

ields

, __ U

. S

.

_

_ , 1 32 S. Ct. 1181, 1 187 (2012) (internal quotation marks omitted). A state c ourt’s decision is “contrary to” c learly established F ederal law i f i t “applies

a rule that contradicts the g o verning law set forth in [ Supreme Court] cases or if it confronts a set of facts that are materially indisting uishable from a decision of [ the Supreme Court] a nd
nevert heless arrives at a result different from [ Supreme Court] p recedent.” E

arly v. P a c ker

, 537 U.S. 3, 8 (2002) (internal q

uotation marks o m i t t ed). A decision is an “unreasonable application of” federal law if it “‘identifies the

c orrect g overning principle from [ the Supreme Court’ s ] decisions but unreasonably applies that principle to the facts of the prisoner’s case.’” Y arborough v. Alvarado

, 541 U. S. 652, 663 (2004) (quoting W illiams v. Taylor

, 529 U.S. 362, 413 (2000)).

A

I n a ssessing whether the e rror in this case is structural,

our task is e asy because the Supreme Cou r t has determined that H erring error is structural. Herring
, 422 U.S. at 864–65. T he Supreme Court r eaffirmed this aspect of Herring m o r e recently in Bell v. Cone
, 535 U.S. 685, 696 n.3 (2002), which
recog niz ed that H

erring did not require a showing o f prejudice. Herring concerned a bench trial where the judg e , pursuant to a state law, r efused to allow the defense o r prosecution to p r e sent closing a rg uments. 422 U.S. at 856. The Supreme Court held that this denial violated Herring ’s Six th Amendment rig ht to counsel by deny ing him t h e r i ght
to “participate fully and fairl y i n the adversary factfinding process,” of which closing arg ument w as a “basic element.” Id. at 858.F R O S T V

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N B O E N I N G 11

The Court held that “only after all the evidence is in” a re the attorney s “in a position to present thei r respective version s o f t h e case as a whole.” Id. at 862. “And for the defense, closing arg ument is the last clear chance to persuade the trier of f

act that th e re may be reasonable doubt of the defendant’s g uilt.” I

d

. (citing W

inship

, 397 U.S. 3 5 8 )

. No
matter how “open a

nd shut” the prosecution’s case may seem, there ar e “ c a ses where closing arg ument may c orrect a premature misjudg ment and a void a n otherwise erroneous verdict.” Id. at 863. “And there is no certain way f or a trial judg e to identify accurately which c ases these wi l l b e , until the j u dg e has h eard the closing summation of counsel.” Id. For these reasons, we have h eld that preventing a defendant fro m a r g u ing a leg itimate defense theory constitutes structural

e r r or. United States v

. Miguel

, 3 38 F

. 3d 995, 1000–03 ( 9 t h Cir. 2003); Conde v. H

enry , 1 9 8 F .3d 734, 739 (9th Cir. 2000). 1

The denial of closing a

rg ument here was far w or s e t h an what occurred in Herring

. I n Herring neither the prosecution

nor the defense made a c losing arg u m e n t

. Bu t in this c ase, the judg e denied F rost one of h is d efense theories in closing
arg ument, while the prosecution f reely arg ued both that it h ad
met its burden of proof and that Fr o s t had not e stablished duress. Defense counsel was forced to counter this closing with “one hand tied behind h is back.” Frost v. Van Boening
, 692 F .3d at 936 (McKeown, J

. , dissenting ). That denial

1 A lth o u g h

o u r d ecisio n s d o n o t co n stitu te “ clearly

estab lish ed Fed eral law ” f o r t h e pu rp o ses o f 28 U .S.C. § 2 25 4(d )(1 ), “ [o ]u r cases m ay b e p ersu asiv e au t

h o rity f o r p u rp o ses o f d eterm in in g w

h eth er a p articu lar state

co u rt d ecisio n is an ‘ u n reaso n ab le ap plicatio n ’ o f Su p rem e Co u rt law

, an d also m ay h elp u s d eterm in e w

h at l aw is ‘ clearly

estab lish ed .’ ” Du h aime v. Du ch a rme , 2 0 0 F.3 d 5 9 7 , 6 0 0 (9 t h Cir. 2 0 00 ).F R O S T V

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N B O E N I N G 12

offended the “ adversary sy stem o f criminal justice” far more than the equal denial of arg ument i n He r ring

. See Herring
, 422 U.S. at 862; cf. United Sta t e s v

. C ronic
, 466 U .S. 648, 659 (1984) (“[ I ] f coun sel entirely fails to subject the prosecution’s case to meaning f ul adversarial testing

, then there h as b een a denial of Six th Amendment rig hts that makes the adversary

process itself presumptively unreliable.”).

Precl u d i n g defense counsel from arg uing a leg itimate defense theory would, by itself, constitute structural e r r o r. B ut the re is much more to the problem in this case. As the Supreme Court recog niz ed, the Six th Amendment violation in Herring was intertwined with t h e requirement under the Due Proce s s C l ause that the prosecution prove all the elements o f an o ffe n s e b ey o nd a reasonable doubt, a s recog niz ed in W

inship

. See Herring
, 4 22 U.S. at 8 62 (citing W inship

, 397 U.S. 358). I n W inship

, the Supreme Court h eld that the Due Process Clause requires t h e prosecution in a criminal proceeding to p r ove all elements of th e crime bey ond a reasonable doubt. 397 U.S. a t 364. As the Court

ex p lained, “[ t] he standard p rovides c o n crete substance for the presumption of innocence—that bedrock ‘ax iomatic and ele m e ntary ’ p rinciple whose ‘enforcement lies at the foundation o f the administration of our c riminal law.’” Id. at 363 (quoting Coff

i n v

. United States
, 156 U.S. 4 32, 453 (1895)). Th u s , d u e process requires that “each element of a crime be proved to the jury b e y o n d a reasonable doubt.” Alleyne v. Unit e d S t a t e s , __ U.S. __, 133 S. Ct. 2151, 2156 (2013). Simply put, “[ t] he Constitution g ives a criminal defendant the rig ht to demand that a jury find him gu ilty o f all the elements of t h e crime with which he is c harg ed.” United States v. Gaudin , 515 U.S. 506, 511 (1995).F R O S T V

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N B O E N I N G 13

As the Court recog niz ed in Herring
, the primary purpose of a defendant’s closing is to h o l d the State to its burden o f proof. S ee 422 U.S. at 862 ( “[ C] losing arg ument is the last cl e a r chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s g uilt.”).

Here, Fr ost wanted to arg ue that the State had not satisfied its burden of proving b ey ond a reasonable doubt that his actions satisfied the elements of accomplice liability

. B ut he was deprived of the fundamental “rig ht to dem a n d t h at a ju r y find him g uilty of all the elements o f the crime.” Gaudin

, 515 U.S. at 511. I nstead, to the contrary , the trial

c o u r t instructed defense counsel that “[ y ] ou must admit the elements of the offense have been proved before y ou c an use the duress [ defense] .” W hile d e f ense c ounsel was p rohibited from making a reasonable d o u bt arg ument, the State was g iven an unfettered opportunity to arg ue that it had proved its

case bey ond reasonable doubt. And the S t a t e t ook full advantag e of that opportunity

. B y forcing defense counsel to concede his client’s g uilt, the trial co u r t s truck at the fundamental presumption of innocence.

Not only did the trial court’s acti o n d e p ri v e F rost of his rig ht to “in s i s t that his g uilt b e established bey ond a

r easonable doubt,” H

errera v. Collins

, 506 U.S. 390, 398 (1993), it w as tantamount to a directed verdict on g u ilt. I t is

ax iomatic that a judg e “may not direct a verdict for the State,

no m atter how overwhelming the evidence.” Sullivan v

. Louisiana
, 508 U.S. 275, 277 (1993); accord United States v

. Martin Linen Supply Co.
, 4 30 U .S. 564, 5 72–73 ( 1 9 7 7 ) ; United B hd. of Carpenters & Joiners of Am. v. United States
, 330 U.S. 395, 408 (1947); S p arf v. United States
, 156 U.S. 51, 105 (1895). I n determining whether the trial co u rt’s action constituted a directed verdict, we look to th e ruling ’sF R O S T V

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N B O E N I N G 14

effect, not its form. Cf. Martin Linen Supply Co.
, 430 U .S. at 571 (noting that, rather than looking strictly a t the form of the ruling

, “we must determine whet h e r t h e ruling of the judg e , whatever its label, actually represents a resolution, correct o r not, of some or all of the factual e lements of the o f fense charg ed”). The record of this case leaves little doubt that the trial judg e ’s actio n s t o o k the question of reasonable doubt
away from the jury

.

W inship further teaches that a defendant ca n n ot constitutionally be tried usin g a l e sser burden of proof. 397 U.S. a t 364–65. D ue process does not permit shifting the burden of proof to the defendant by the use of conclusive o r burden-shifting presumptions. Mullaney v. W ilbur

, 421 U.S. 684, 703–04 (1975). By requiring defense counsel to concede his c lient’s g uilt before a r g u i n g his affirmative defense, the trial court relieved the State of its burden o f proving g uilt bey o nd a reasonable d ou b t a nd shifted the burden of p r oof to F rost of proving his du ress defense by a preponderance of the evidence. The trial court was ex plicit

on this point. I t instructed that once “the d e f e n s e say s [ the crime] is proved

. . . that is wh en y o u g et an o pportunity to raise this affirmative d efense and prove it by a preponde ra n ce.” The case was impermissibly a nd unconstituti o nally tried to the jury with the burden of proof on F rost. 2

2 T h e d i s s en t arg u es t

h at “ th e j u d g e p resen ted a ch o ice to F ro st as

o p p o sed to h an din g d o w n a p ro h ib itio n o r m an d ate.” T h is is m aterial,

acco rd i n g t o th e dissen t, b ecau se “ h ad F ro st u n w isely p u rsu ed h is f ailu reo f

- p ro o f arg u m en t in lieu o f h is d u ress d ef en se, th ese an cillary

co n stitu t i o n a l issu es

. . . w o u l d b e d ep riv ed o f th eir su p p o rtin g ro le.” If it w ere a ch oice, it w as a Ho b s o n ’ s ch o ice, th e resu lt o f w h ich allo w ed th e b u rd en o f p ro of to b e sh if ted to Fro st. T h e j u dg e f

o rced Fro st to ab an d on

o n e of h is tw o d ef

en se th eo ries, an d th at restrictio n resu lted in stru ctu ralF R O S T V

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N B O E N I N G 15

I n sum, there is n o question that the trial court violate d F rost’s due process rig hts under a long line o f clearly established Supr e m e C ourt precedent. The trial court unconstitutionally

violated F rost’s rig ht to closing arg ument under Herring

. F r ost wa s d e prived of his rig ht to demand that a jury f

ind him g uilty of all the elements of t he crime with which he is charg ed under W inshi p a n d Gaudin

. The trial court’s ac t i o n s in f

orcing d efense counsel to concede
g uilt amounted to an unconstitutional directed verdict under Sullivan and Martin Linen Sup p l y C o

. The burden of proof

was unconstitutionally shifted to F r ost in violation of W inship and Mullaney

. These ty

pes o f errors strike at the h eart of the presumption o f innocence and the defendant’s rig ht to contest that the State p rove its case bey ond a reasonable doubt. I f the
presump t i o n of innocence is missing f rom a trial, then there has been n o jury verdict withi n t h e meaning of the Six th Amendment. Sullivan

, 508 U.S. at 2 7 8. T h eses ty pes o f

errors are unquestionably structural under Herring
, W inship

, and Sullivan

.

B

Ag ainst this long lin e o f Supreme Court precedent, the S t a t e still insists that precluding d efense counsel f r o m arg uing reasonable doubt is a mer e t ri al error, subject to harmless error analy si s

. The State relies on Herring ’s unremarkable o bservation that trial courts have “ g r e a t latitude in controlling the duration and limiting the scope o f c l osing summations.” 422 U.S. at 862. T h e State, however, ig nores the import of that passag e in Herring

. Herring quite reasonably disting uished r easonable r estrictions on closing

erro rs b ey o n d th e H

e r r i n g erro r, reg ard less o f h o w th e restrictio n is lab eled an d reg ard less o f t h e f act th at Fro st co u ld h av e ch o sen dif f eren t ly

.F R O S T V

. V A

N B O E N I N G 16

arg ument from unconstitutional denials of closing arg ument. Reasonable restrictions on c losing arg ument do not constitute

e r r or a t all, much less constitutional error. Total preclusi o n of a rg ument is constitutional error, which Herring instructs is structural error. I n short, if there is Herring error, the error is structural. Absent Herring error, there is either no error at all or trial error subject to a harmlessness inquiry

. The Court in Herring did not c r eate some intermediat e c a t e g ory o f Herring error subject to harmless error analy sis.

The error here was u n doubtedly a Herring erro r d e spite the dissent’s contention that the “complet e denial o f closing
arg ument at i s s ue in Herring cannot be equated with the limitations on closing arg ument imposed in Fr o st’s trial.” The dissent characteriz e s the error as a mere limitation on the
scope of F rost’s closing arg um e n t when in fact it was an absolute preemption o f one of his factually supported, leg ally available defense theories. F inding Herring error here does not, a s the dissent argu e s , amount to an “ ex pansive interpretation of Herring ” and does not “infer a broader rule from Herring .” The error here amounted to a total denial of closing arg u ment on a leg itimate d e f e n s e theory a

nd is thus squarely within the Herring rule. L ikewise, finding H erring

error here d oe s n ot create the “substantial neg ative consequences” presented b y the di ssent, where this w as not a discretionary

limitation of closing arg ument.

I ndeed, the W ashing ton Suprem e C o urt did not leave us in doubt as to what ty

pe of error was involved in this case. I t

ex p licitly held that the error h ere was Herring error, not mere trial error. I t unanimously rejected the State ’s attempt to disting uish Herring on the basis that the trial jud g e was simply ex ercising his d iscretion to place leg itimate a nd reasonable limits on c losing arg uments. I nstead, it ex presslyF R O S T V

. V A

N B O E N I N G 17

h e l d that the trial court’s limitation on closing arg umen t violated F r ost’s due process and Six th Amend m ent rig hts. Frost
, 161 P.3d at 369. Once the W ashing ton Supreme Court correctly d etermined that the trial judg e committed H erring and W inship error, the error was necessarily structural.

I n apply ing a harmle ss e rror review, the W ashing ton Supreme Court majority held that it was “a s e q u i p ped to

assess whether the trial court’s mist ake in limiting closing
arg ument affected the o utcome of this case as it is to conduct other harmless error analy ses, such as those reg arding an

erroneous instruction o r e videntiary decision.” Id. at 370. B ut this reasoning contradicts Herring
, which held that no matter how strong the evidence may seem, complete d e nial o f closing arg ument constitutes structural error. See 422 U .S. at 863. And a judg e may not f unctionally direct a verdict f or the State, “no matter how overwhelming the e vidence.” Sullivan

, 508 U.S. at 277. B y c oncluding it should conduct a harmless

error analy sis after f

inding structural errors, as determined b y the Supreme Court in Herring and W inship , the W ashing ton Supreme Court unreasonably applied clearly e stablished F ederal law.

I I I

The trial court infring ed F r ost’s Six th an d Fourteenth Amendment rig hts w hen it p re c l uded his counsel from making a reasonable doubt a rg u m en t to the jury

. F rost was deprived o f his rig ht to demand that a jury find him g uilty o f all the e lements o f t h e c rime. T he trial court’s action amounted to a directed v erdict of g uilty

. The burden of proof

was unconstitutionally shifted. F rost’s rig ht to present a closing a rg ument was violated. These constitutional violations were structural a n d n o t s u bject to harmless errorF R O S T V

. V A

N B O E N I N G 18

review. We therefore reverse the district court’s denial o f F rost’s h abe a s petition and remand with instructions for the district court to conditionally g ra n t t he writ. W e d eny a s moot all pen ding motions a n d decline to ex pand the certificate of appealability

.

REVERSED and REMANDED.

J udg e TAL L MAN, with w hom J udg e s RAW L I NSON, B YB EE, CAL L AHAN, and M. SMI TH join, dissenting :

The United States Supreme Court has never ex tended its holding in Herring v

. New Y ork

, 422 U. S

. 8 53 ( 1975), to

s upport the majority ’s claim of structural error w here th e affirmative defense of duress necessarily requires admission of the criminal c onduct soug h t to b e ex cused. There is a fundamental d iff

e r ence between the complete denial o f

c l o sing a rg ument at issue in Herring and the limitatio n s o n clos i n g a rg ument imposed in F rost’s trial. B y d eclaring structural error in this circumstance, our court o nce ag ain ig nores the Supreme Court’s trenchant instructions to

ex e r cise restraint in defining clearly established federal law,
to g rant deference to state courts under the Antiterrorism a nd Effecti v e D e ath Penalty Act (“AEDPA”), and to find

s t r u c tural error o nly in rare instances. I n lig ht o f these of t

repeated directives, we should conclude that the W ashing ton Supreme Court’s interpretation of Herring
, as inapplicable to

reverse F rost’s c onvicti o n s , was neither contrary to nor an

un re a sonable application of clearly established federal law, and that we are compelled under AEDPA to g rant deference
to the state court’s decision. See Harr i n g ton v. Richter

, 131 S. Ct. 770, 785 (2011).F R O S T V

. V A

N B O E N I N G 19

I

The majority ’s interpretation o f Herring is not t h e only

re a s o n able reading of the Court’s opinion and, therefore, is
not persuasive on AEDPA review. The majority relies on Herring to conclude that the trial court’s error—res t ricting F rost’s closing arg ument to permit e ither a failure-of-proof
arg ument or a duress defense ( a n d not both)—was structural and not subject to harmless-error analy sis. That a r g ument misconstrues and unjustifiabl y e x tends this Supreme Court precedent. Herring simply held that a c ourt’s “total denial” of closing arg ument constituted s t r u c tural error. Id

. at 858–59, 863–65. H

erring is silent on whether an erroneous limitation requiring a defendant to choose between two i n compatible defenses, such as the one imposed by the t r i al court in this case, is structural error.

I n Herring , the defendant w as denied any opportunity

to make a closing arg ument before judg ment was rendered in a criminal bench trial. Id

. A t the conclusion of the b ench trial, Herring ’s counsel asked “to b e heard somewhat on the f acts.” Id. at 856. Rely ing on a New Y o r k s tatute that “confer[ red]
upon every judg e in a nonjury criminal tri a l t h e power to deny counsel a n y opportunity to make a summation of the evidence before the rend i tion of judg ment,” id. at 853, the judg e responded, “I choose not t o h e a r summations,” id

. at 856. The judg e then found Herring g uilty of the c r ime charg ed. Id.

The Supreme Cour t vacated the conviction, holding that the utter denial of closing argu m e n t violated H erring ’s rig ht
to counsel. I

d

. at 857–65. T he Court con c l u ded that “there

c a n be no justification for a statute that empowers a trial judg e to deny absolutely the opportunity for any closingF R O S T V

. V A

N B O E N I N G 20

s u m m ation at all .” Id

. a t 863 (emphasis added). T h e Supreme Cour t s t a t ed that “[ t] here can b e no doubt that

c l o s ing arg ument for the d efense is a basic element of t h e adversary fa ct f

inding p rocess in a criminal trial” a nd that “a total denial of the o pportunity f or final arg ument in a n onjury criminal trial” violates the Six th Amendment. Id

. at 858–59. As a result, the Court held that d e ny ing counsel a ny opportunity to m a k e a closing arg ument is structural error. Id

.

I n announcing its decision, h owever, the Court was careful to observe that there i s a f undamental difference b e t ween a complete denial of closing arg ument a n d a limitation on the scope of closing arg ument. The Court acknowledg ed what every trial judg e knows: that mere limitations on closing arg uments do not constitute structural

error because “[ t] he presiding judg e m ust be a nd is g iven
g reat latitude in controlling the d uration an d l imiting the
scope of closing summations.” Id

. at 862. This is consistent with long standing precedent under which w e h a ve held that

a trial judg e has broad discretion to c ontrol closing arg ument. See United States v

. Guess
, 745 F .2d 1286
, 1 2 8 8 (9th Cir. 1984).

T h e complete denial of closing arg ument at issue i n Herring cannot be e quated with the limitation s on closing
arg ument imposed in F rost’s tri al. Unlike in Herring
, the trial judg e allowed F rost’s c o u n s e l to make a closing
arg ument. T h e j u d ge r estricted the scope of that arg ument, incorrectly r e quiring counsel to choose between two conflicting defenses, but p e r m itting c o unsel to arg ue one. F rost’s c ounsel elected to arg ue F rost’s duress. Herring does

n o t compel the conclusion that a court’s ruling that restrict s the scope of arg

ument, but does not entirely prohibit closingF R O S T V

. V A

N B O E N I N G 21

arg ument, is structural error. F rost’s claim requires more than simply a p ply ing the rule a nnounced in Herring to a different f actual scenario. Application of Herring to F rost’s

case inappropriately ex tends the Supreme Court’s holding to a novel leg al question that it has never addressed.

I I

A

The majority ’s ex pansive inter p r e t a t i o n o f Herring cannot be reconciled w ith the Supreme Court’s instructions to only find structu r a l er r or in rare instances. T h e Court has

“ r e p e a t e d l y recog niz ed that the c o m m i s s i o n o f a constitutional error at trial alone does not entitle a defendant
to automatic reversal. I nstead, most constitutional errors can be harmless.” W

ashington v

. Recu e nco , 548 U.S. 212, 218 (2006) (internal quotation marks omit ted). “ Only in rare

cases has th[ e] Court held that an error is structural, and thus requires automatic reversal.” Id

. These “rare cases” involve the complete denial of c ounsel, a biased trial judg e , a defective instruction defining proof bey ond a re a s o nable doubt, denial of self-representation at trial, and racial discrimination in the selection of t h e g rand jury

. Id

. at 218–19 n.2.

The Supreme Court has determined that “if the defendant ha d counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [ c onstitutional] errors that may have occurred are s u b j e c t to harmless-error analy sis.” Id

. at 218 (internal citations and q uo t a t ions omitted). The Court has f ound the f

ollowing errors t o be

s ubject to h armless-error review: jury instructions t h at misstat e a

n element of the offense; improper comment onF R O S T V

. V A

N B O E N I N G 22

defendant’s silence at trial in violation of the F ifth Amendment Self-I ncrimination Clause; failure to instruct the jury o n the p resumption of inno c e n ce ; a nd failure to g ive a jury instruction on a lesser included offense in a capital case in violation of the Due Process Clause. A riz o n a v

. Fulminante , 499 U.S. 279, 306–07 (1991).

The W ashing ton Supreme Court correctly concluded that “the e rror [ committed by the tr i a l c o urt] [ w a ] s not so eg reg iou s as to require a utomatic reversal” a

nd was comparable to the err o r s that the Supreme Court has previously found harmless. State v. Frost
, 161 P.3d 3 6 1, 370 (W ash. 2007) ( e n b a nc). The error “occurred during the presentation of the case to the jury

, and [ cou l d ] t herefore be quantitatively assessed in the contex t of other evidence presented in order to d etermine w he t her [ it] was harmless bey ond a reasonable doubt.” Fulminante

, 499 U.S. at 307–08. Reviewing the record a s a w h o l e , the W ashing ton Supreme Court correctly concluded that the e rror committed in F rost’s case was of similar mag nitude and impact a s other constitutional violations found by the U nited States Supreme Court to be harmless.

I n the absence of a U nited States Supreme Court opinion holding that partial restrictions on closing arg ument amount to structural error, and in lig h t of the Court’s precedent that
most errors are subj e c t to harmless-error review, the W a shin gt o n Supreme Court’s conclusion that the error identified by F ro s t w as harmless w as not objectively unreasonable. I n holding that it was, the majority n o t o nly fails to g rant appropriate d e ference as required by AEDPA, but it also ig nores the Su p reme Court’s admonition to find structural e rror only in rare and limited circumstances. W h en it elected to ex trapolate a nove l r u l e from Herring that wasF R O S T V

. V A

N B O E N I N G 23

neither c onsidered nor addressed by the Supreme Court, the majority failed to h eed the Supreme Court’s wa r n i ng that constitutional errors are strong ly presumed to be harmless.

B

The majority concludes that we must infer a b roader rule from Herring

—tha t s t r uctural error also occurs when a trial
court limits the scope o f cl o s i n g arg ument, p r ohibiting a defendant fr om arg uing a defense or claim b ut permitting closing arg umen t on the primary defense theory

. B ut the Supreme Court has repeatedly admonished us not to infer

ex tensions from the r

ules identified in its opinions. See, e.g. , Nevada v

. Jackson

, 133 S. Ct. 1 9 90, 1994 (2013) (per curiam); Richter , 131 S. Ct. at 785.

The fact that a rule mig ht be nec es s ar ily implied from a Supreme Court decision is insufficient to show that t h e rule is c learly established federal law under A E D P A

. See
, e.g. , W right v. Van Patten
, 552 U.S. 120, 124–26 (2008) (per curiam) ( holding that no prior Supreme Court decision provided a “categ orical answer” to t h e question of whether prejudice may be pres umed when defense counsel participated in a p lea hearing by telephone, stating “[ b] ecause

our cases give no c lear a

nswer to the question presented

. . . it cannot be said that the state court unreasonabl[ y ] appli[ ed] clearly established F ederal law ”) ; Kane v. Garcia Espitia
, 546 U.S. 9, 1 0 (2005) (per cur i a m ) ( “[ I ] t is clear that [ a defendant’s r ig ht to self-representation under] Faretta d o e s not, as § 2254(d)(1) requires, ‘ clearly establis[ h] ’ t h e law library a ccess rig ht[ ;] [ i] n fa ct , Faretta say s nothing about
any specific leg al aid that the State owes a p r o se criminal defendant.”).F R O S T V

. V A

N B O E N I N G 24

I n J ackson , the Supreme Court unanimously reversed us for ex tending the rules announced in its opinions. 1 33 S. Ct.
at 1 990–94. The three-judg e Jackson panel had relied u p o n “Supreme Court decisions h olding that various restrictions on

a defendant’s ability to c ross-examine witnesses violate t h e Confrontation Clause of the Six th A mendment.” Id

. a t 1994 (emphasis in orig in a l )

. T h e panel then inferred from these

cases the specific rule that “the Confrontation Clause entitles

a crimina l defendant to introduce extrinsic evidence for impeachment purposes.” Id . (emphasis in orig inal).

Our Jackson panel made this leap in log ic, “elid[ ing ] the distinction betwe e n c r o ss-ex amination and ex trinsic evidence by characteriz ing the cases a s recog niz ing a broad rig ht t o present ‘evidence bearing on [ a witness’] credibility .’” Id

. (second alteration in orig inal). I n reversing that opinion, the Supreme Court pointedly stated that “ [ b] y framing our precedents at such a h ig h level of g e nerality , a lower federal
court c ould transform even the most imag inative ex tension o f

ex isting case law into ‘clearly establi s h e d F ederal law, a s determined by

the Supreme Court.’” Id

.

The majority repeats the same mistake committed by our Jackson p anel. I t has e x tended the narrow holding in H erring
to find structura l e r ror where a d efendant is prevented from
arg uing in closing one of several inconsis t e n t defense theories. I t does this despite the fact that the Court has

re p eatedly and ex pressly instructed us to ex e rcise restraint when defining clearly established federal law—an instruction that the majorit y all too readily ig nores. See, e .g. , Richter

, 131 S. Ct. at 785; see also W illiams v. Taylor

, 529 U.S. 362, 385–86 (2000) (stating that AEDPA c reated a “‘mood’ that
t h e Fe deral J udiciary must respect” in that “federal judg es [ should] a t t e nd with the utmost care to state-court decisionsF R O S T V

. V A

N B O E N I N G 25

. . . before concluding that those p roceeding s were infected b y constitutional error sufficiently serious to w arrant the issuance of the writ”).

AEDPA deference requires that a claim be based upon a Supreme Court decision that e x isted at the time of the state court adjudication. The W ashing ton Supreme Court correctly concluded that the United States Supreme Court’s decision in Herring did n ot ex tend to restrictions on closing a r gument that fall short o f outrig ht p rohibitions. W e should abide b y th e AEDPA statutory restriction and accord W ashing ton’s hig hest court the c omity that Cong ress and the Supreme Court require.

C

The log ical ex tension of the majo ri t y ’ s r ule would be to declare structural error a n d require automati c r eversal any time a trial judg e erred in placing limits o n closing arg ument because petitioner could arg ue that, as to the contested issue, the limitation resulted in a total denial of closing a rg ument on

a leg itimate defense theory

. This result is apparent when y ou look be l o w the surface of the majority ’s all-or-nothing
arg ument, which amounts to s t at i n g, “ I f y ou d on’t like y our closing arg ument and can f ind a ny e r ror, no matter h ow small, we won’t hold y ou to y our c onviction.” T h i s log ic would require convictions to be vacated and new t r i a l s g r a n t e d o n a number of lesser errors, which may now be deemed structural.

F or ex ample, if structural e rror is found in this case, h ow could w e say that structural e rror does not also occur when a trial judg e improperly ex cludes ex c ulpatory evidence without
reg ard to materiality and forbids defense co u n sel fromF R O S T V

. V A

N B O E N I N G 26

commenting o n it in closing ? I n both instances, the defendant i s prohibited from effectively claiming innocence a nd f r o m comprehensively arg uing all theories that support that defense. Structural er r o r m ay also be found when a trial judg e improperly restricts closing arg ument by imposing time limitations that necessarily require the defense to c h oose among multiple arg uments to emphasiz e during summation. Claims o f structural error may a lso be made when a judg e adopts any number of limitations that inhibit defense counsel fr om making their most effective and comprehensive
arg umen t s s upporting a defendant’s innocence without reg ard
to any evidence su p porting the claim or the contex t from which the arg ument is to be made

. T h a t cannot b e the law and the Supreme Court has never said any thing of the sort.

There are substantial neg ative consequences to interpreting the Supreme Court’s decision i n H erring

ex p ansively and increasing the number of e r r ors deemed structural. Doing so eliminates any need to es t a b lish prejudice to show that the defendant wa s d e p rived of a fair trial. The majority ’s interpretation, and its undeniable effect,
cannot be reconciled with our limited role i n h ab eas proceed i n gs involving r eview of state convictions under AEDPA.

I I I

The majority cites to two Ninth C i r c u i t cases, Conde v

. Henry
, 198 F .3d 7 34 ( 9th Cir. 1 999), a nd United States v

. Miguel

, 338 F .3d 995 (9th Cir. 2003), to c o n clude “that preventing a defend a n t f rom arg u ing a leg itimate defense theory constitutes structural error.” The majority ’s reliance

on these cases is in error. As the district court held, “ Circuit case law is not clearly

established federal law a s determinedF R O S T V

. V A

N B O E N I N G 27

by the Supreme Court and is not, alone, a basis for the Court
to g rant habeas relief.” See Renico v. Lett
, 559 U.S. 7 6 6, 779 (2010) (stating that a decision of the court o f a p p eals “does
not constitute clearly established F ederal law, as determined by the Supreme Court, § 2 2 5 4 ( d ) ( 1 ), so any failure to a pply that d ecision cannot independently authoriz e habeas relief under AEDPA.” (internal quotation marks omitted)); see also Parker v

. M

a t thews

, 132 S. Ct. 2148, 2155 (2012) (per curiam) (stating that “circuit preced e n t does not constitute clearly established F ederal law,” and it “cannot form the basis for habeas relief und e r AEDPA”). Consequently

, our decisions in Conde and Miguel are insufficient to find that the W a shing ton Supreme Court’s decision—that the trial court’s

error was not structural—was contrary to, or an unreasonable application of, clearly

established federal law.

F urthermore, even if Conde or Miguel were instructive in defining clearly established f ederal l aw, both cases a re disting uishable. I mportantly

, neither case inv o l v ed a petitioner seeking habeas relief post-AEDPA, so neither case bound our court to AEDPA’s deferential review standards on appeal. On f

ederal habeas re v i ew , we must u phold the W a shing ton Supreme Court’s adjudication o f F rost’s claim unless we co n cl ude that its interpretation limiting the

ex tension of Herring was objectiv e l y unreasonable, and not

mer ely because we w ould have reached a contrary interpretation. See Renico
, 559 U.S. at 776 (“ A E D P A authoriz es federal courts to g rant relief only when state courts act unreasonably .”).

I n Conde

, a p r e- AEDPA habeas a p peal, we concluded that structural error occurred b ecause “the trial co u rt improperly precluded Conde’s attorney from making closing
arg ument e x plaining the d efendant’s theory o f the case, itF R O S T V

. V A

N B O E N I N G 28

refused to instru ct the jury on the d efendant’s theory

, and,

over the defendant’s objection

, i t g ave jury instructions that did not require t h at the jury find every element of the offense.” 198 F .3d at 7 4 1

. “Tog ether,” we found, “these

errors deprived the peti t ioner of effective assistance o f counsel, due process and trial b y jury on every element of the charg ed crime.” Id

.

I n M iguel

, a direct appeal from a fed e r al criminal proceeding, w e h eld that structural error occurred when the district court precluded defense c ounsel from arg uing during closing that someone other than the defendant shot the victim and that n o evidence supported the defense theory

. 338 F .3d

a t 1 000–01. Althoug h we cited to Herring in so ruling

, o u r decision in Miguel insufficiently e s tablishes under AEDPA that the Washing ton Supreme Court’s determination in this

case was contrary to, or an unrea s o nable application of, clearly established federal law.

He r e , after he had taken the stand and a dmitted to participating in an e l e v e n

- day crime spree, F rost was permitted to arg ue during closing arg ument that he committed the crimes u nder duress—the primary defens e t heory in his

case. F urth er , a s the W ashing ton Supreme Court and the district court hig hlig ht e d, “[ t] he record clearly shows the prosecutor arg ued it w as the state’s burden to prove that F rost

was an a c c o m p lice and to prove b ey ond a r easonable doubt each and every element of the ch a rg ed offenses.” Frost v

. Van Boening
, No. C09-725-TSZ

- B AT, 2010 W L 5775657, at

* 8 (W .D. W ash. Oct. 5, 2 010) (adopted by Frost v

. V a n Boening
, No. C09-725Z
, 2011 W L 486198 (W .D. W ash. F eb. 4
, 2011)); see F

rost , 161 P.3d at 3 64 (“I n closing

, t h e prosecutor repeatedly

mentioned the State’s burden of proof

as to Fr o s t ’ s robbery o ffenses. L ikewise, the jury wasF R O S T V

. V A

N B O E N I N G 29

properly instructed on the State’s burden of proof in g eneral,

as well as t h e requirements to prove accomplice liability in particular.” (internal citation omitted)). Thus, the j u r y received ample instruction on the c a rdinal principles o f criminal law and it was properly equipped to apply the facts, as it found them, to the leg al framework.

B y relying on circuit p recedent to find structural error, the majority also ig nores the Supreme Court’s recent admonition in Marshall v

. Rodgers

, 1 33 S. Ct. 1446 (2013) (per curiam). I n reversing us in Marshall

, the Court noted that our opinion “rested in part on the mistaken belief tha t c ircuit p recedent
may b e used t o r e f

ine or sharpen a g eneral principle o f Supreme Court jurisprudence into a specific leg a l rule th at this Court has not announced.” Id

. at 1450. I t reiterated that in reviewing habeas petitions we “m a y n o t canvass circuit decisio n s t o determine whether a particular rule of law is so widely accepted among the F ederal Circuits that it would, if presented to this Court, be accepted as correct.” Id

. at 1451.

This is precisely the tactic that the majority has employ ed
to g rant F rost’s habeas petition. Given our limited r eview under AEDPA, our decisions in Conde a nd Miguel do not establish that the W ashing ton Supreme Court ’ s d ecision to apply harmless-error review was c o n trary to or involved an unreasonable application of clearly established federal law, a s determi n e d b y the Supreme Court. Absent such a showing

, under AEDPA we must defer to the state court’s decision.

I V

The majority also bends th e fa c t s o f the c ase in its favor by framing a choice as a mandate. T h e majority asserts that the judg e “specifically prohibit e d counsel from arg uing thatF R O S T V

. V A

N B O E N I N G 30

the State had not met its burden of proof” and that “defense counsel was precluded from arg u ing reasonable doubt.” B ut that is incorrect. The trial judg e repeated l y i n dicated that F r o s t was free to assert that the prosecution h a d n ot proved accomplice liability

. B ut the judg e also noted, albeit in error, that such a choice would have consequences, informing F rost that “[ i] f he [ arg u e d failure of proof during closing ,] the duress instruction will come out of the ca s e

. ” B y requiring F rost to “opt for one [ theory ] or the other,” t h e judg e presented a choice to F r ost as opposed to handing down a prohibition or mandate. And, a lthoug h the judg e may have hint e d a t his belief that abandoning the duress defense a nd electing to arg ue t h at the prosecution had n ot satisfied its burden of proof would be unwise, the judg e did not usurp F rost’s choice. 1

This is material to the a

naly sis because the majority finds support for its structural-error conclusion based on Fr ost’s

1 T h e m aj o rity asserts th at an y ch oice Fro s t h ad “ w as a H o b so n ’ s ch o ice, th e resu lt o f w

h ich allo w ed th e b u rd en o f p ro o f to b e s h if t ed to Fro st.” B u t a H o b so n ’ s ch o ice, w h ich req u ires s electio n b etw een so m eth in g or

n o th in g , is o n ly p resen t he r e i f w e v iew Fro st as b ein g f o rced to ch o ose b etw e e n p ur su i n g an af

f i rm ativ e d u ress d ef

en se o r m ou n t in g n o d ef

en s e at all. T h is m ay b e tru e g iv en th at Fro st h ad alread y th rice co n f essed an d th en testif ied t o particip atin g in th e crim es, b u t if so , an y Ho b s o n ’ s ch o i ce

w a s o f h i s o w

n m ak i n g

. A s o p p o sed to a Ho b so n ’ s ch o ice, Fro st’s
p red icam en t is m o re ak in to “M o rto n ’ s Fo rk .” Bu rro u g h s v. Metro

Go ld wyn -Ma yer, In c. , 6 8 3 F .2 d 6 1 0
, 6 23 n .1 3 (2 d Cir. 1 9 8 2 ) (d escrib in g

“ Mo rto n ’ s F o rk ” in th e co n tex t o f a d if f eren t l e g a l d i s p u t e). T h e t rial

co u rt erro n eo u sly m ad e Fro st ch o ose b etw een t w o th eo retically o p p o site tin es, b o th

o f w h i ch led to an eq u ally u n d esirab le o u tco m e—co n v ictio n

. Up o n cry of “ erro r,” an d at t h e pu b lic’s e x p en se, th e m aj o rity su sp en d s reality an d ch arts Fro st a n ew co u rse aro u n d b o th Scy lla an d Ch a r y b d is. A EDP A p rev en ts su ch saf e passag e w

h en th e resu l t i n g sh ip w

reck w as in ev i tab le.F R O S T V

. V A

N B O E N I N G 31

actions instead of the judg e’s. The majority concludes that b y “depriv[ ing ] Fr o s t of his rig ht to ‘insist that h is g uilt be established b e y ond a reasonable d oubt,’” the tr i al judg e essentially e n tered a “directed verdict on g uilt.” Rely ing on Supreme Court cases that i n s t r uct both (1) that a defendant
cannot constitutionally be tried under a lesser burden of proof and (2) that due pr ocess p revents a state from shifting the burden of proof to the defendant, the majority c oncludes that “the trial judg e’s actions took the question o f r ea s o nable doubt a way from the jury ” such that the “case w a s impermissibly and unconstitutionally tried to the jury with the burden of proof on F rost.” B ut this overlooks F rost’s role. After all, had F rost unwisely p ursued his fai l u re

- o f-proof
arg ument in lieu o f h is duress defense, these a ncillary constitutional issues that the maj o r i t y leans o n would be deprived of their supporting role.

V

AEDPA mandates that “a state prisoner seeking a writ o f habeas corpus from a federal court ‘must show that the state court’s ruling on the claim b eing presented in federal court

was so lacking in justifica t i o n that there was an error w ell understood and comprehended i n ex isting law bey ond any possibility for fairmind e d d isag reement.’” Bobby v. Dixon
, 132 S. Ct. 26, 27 (2011) (per c uriam) (quoting Richter

, 131 S. Ct. at 786–87). I n the absence o f a S u preme Court holding that the error in this case was structural error—and in lig ht o f the Court’s recurring precedent that most errors are subject to harmless-error analy sis and that clearly established federal law must b e interpreted narrowly —the W ashing ton Supreme Court’s conclusion that harmless error a pplies here w as not objectively unreasonable.F R O S T V

. V A

N B O E N I N G 32

AEDPA does not pe rm it us to reject a state court’s interpretation of Supreme Court precedent simply because we disag ree. See, e.g. , Lockyer v. Andrade

, 538 U.S. 63, 75 (2003). I n Lockyer

, the Supreme Court r eversed our decision to g rant habeas relief, ex

p laining :

I t is not enoug h that a federal h abeas court, in its “independent r eview of the leg al question,” is left with a “firm conviction” that th e state court was “erroneous.” W e have h e ld precisely the opposite: “Under § 2254(d)(1)’s ‘unreasona

ble application’ clause, then, a federal habeas c o urt may not issue the writ simply because that court concludes in its independent judg ment that the relevant

s t a t e

- c o u r t d e c i s i o n a p p l i e d c l e a r l y established federal law erroneously o r incorrectly .” W

illiams v. Taylo r , 529 U.S. 362, 411 (2000). R at her, that application
must be objectively unreasonable. Id

. at 409; Bell v

. Cone
, 535 U.S. 685, 699 (2 0 02); W oodford v. Visciotti
, 537 U .S. 19, 27 (2002) (per curiam).

Id

. at 75–76 (selected internal citations and quotation marks omitted); see also Schriro v. La n d r i g a n , 550 U.S. 465, 473 (2007) (“The question u nder AEDPA is not whether a federal

co u r t believes the state court’s determination was incorrect but whether that determinat ion was u nreasonable—a substantially

hig her threshold.”).

B e cause the Supreme Court has never addressed a c laim, such as the one p r e sently before us, concerning a restriction

on the scope of c losing arg u m e nt, the W ashing ton SupremeF R O S T V

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N B O E N I N G 33

Court’s determina t i o n that the error was not structural does
not require automatic reversal. See Richter

, 131 S. Ct. at 786 (“[ I ]t is not an unreasonable a pplication o f clearly e stablished F e d e r a l l aw for a state court to decline to apply a specific leg al rule that has not been squarely established by this Court.” (quoting Knowles v. Mirzayance , 556 U.S. 111, 122 (2009) (alteration in orig inal))).

The Supreme Court’s de c i sion in Herring did not “establish a leg al principle that clearly extends ” to limitations imposed on clos i n g arg uments, as opposed to the complete denial of arg ument. Moses v

. Payne
, 555 F .3d 7 4 2, 754 (9th Cir. 2009) (emphasis added). I ndeed, the W ashington Supreme Court was able t o “ d r a w a principled distinction between the case before it and Supreme Court case law,” a nd

we are bound under AEDPA t o defer to the state court’s reasoned opinion. Murdoch v

. Castro
, 609 F .3d 983, 991 (9th Cir. 2010) (en banc); see also Van Patte n , 5 5 2 U.S. at 124–26.

VI

The W ashing ton Supreme Court properly concluded that the trial court’s error w as h a r mless. On habeas review, to determine w h e t her F rost is entitled to relief, our analy sis is focused on whether th e t r i a l court’s restriction on F rost’s closing arg ument “had [ a] substantial and injurious effect or influence i n determining the jury ’s v erdict.” Brecht v

. Abrahamson

, 507 U.S. 619, 6 37 ( 1993) ( quoting Kotteakos v

. United States , 328 U.S. 750, 776 (1946)).

Under this standard, F rost is “not entitled to habeas relief based on trial error unless [ he] can establish that it resulted in

‘ actual prejudice.’” Id

. ( quoting United States v. L a n e ,F R O S T V

. V A

N B O E N I N G 34

474 U .S. 438, 449 ( 1 9 86)). W e should hold that, “[ i] n lig ht of the record as a whole,” the trial court’s limitation on defense counsel’s closing arg ument did not have a “substantial and injurious effect or i n f l u ence in d etermining the j u r y ’ s verdict” for several reasons. Id

. at 638 (internal quotation m a r k s omitted). That is what the W ashing ton Supreme Court ultimately

, and correctly

, decided. See Frost
, 161 P.3d at 364.

First, the evidence of F rost’s g uilt at trial w a s overwhelming

. F r ost g ave thre e t ap e d confessions, all o f which were entered into evidence at trial. F u rther, F rost t e s t i f ied in detail about his involvement in the c rimes for which h e was c harg ed as an accomplice, admitting that: ( 1 ) he d rove Williams to the Gapp residence on the nigh t o f the robbery

, that h e e ntere d the residence, and removed
money and g uns from G app’s safe; (2) h e drove the codefendants to the Taco Time restaurant, T and A video store, the 7-Eleven convenience store, and Ronnie’s Market on the nig ht that each of those robberies took p l a c e ; (3) he was

aware that W illiams carried a bag containing such items as a ski mask and g loves that were routin el y u s ed to commit the crimes; and (4) h e was a ware of his co-def

e ndant’s use o f firearms. F inally

, Detective B r og g i’s testimony reg arding the loaded g u ns, cash reg ister, bank bag s, safe, and ski masks that

were found at F rost’s h o me further corroborated F rost’s active role in the crimes.

Second, F rost conceded g u ilt as to so m e o f these crimes when h e t e s t i fied in his own defense before the trial court erroneously restric ted F rost’s closing arg ument. During opening statements, F rost’s counsel a dmitted that F r o s t

c o mmitted at least one of the robberies, stating

, “ You will find f r om the evidence

. . . that J oshua F rost is g uilty o f theF R O S T V

. V A

N B O E N I N G 35

robbery of [ the elderly coupl e ]

. ” Consistent with his counsel’s statements, F rost to l d the jury that he participated in the charg ed crimes but claimed that he did so under duress.

Third, as to the remaining offenses, the state’s burden of proof did not g o untested because d efense counsel was barred from raising reasonable d o u b t as to accomplice liability

. Althoug h F rost’s counsel ad m i t t ed during closing arg ument that F r ost was g uilty of accomplice liability on certain counts, he also arg ued that t h e s t a t e had failed to meet its burden o f proof on others. Specifically , F r ost’s counsel arg ued:

I think y ou c an find J oshua F rost g uilty of the Gapp robbery because tha t is just so overpowering

, and he did g o int o t he house. I think y ou c an find J oshua F rost g uilty of the T and A r obbery n ot because h e went in to do the robbery but b ecause he actually entered the store. And th e o nly reason I think y ou could find him g uilty of that is that it is kind of just too much to ask for someb o d y who is willing to take the step to let h i m off. And I know t h a t i s what y o u are thinking

, some o f
y ou. B ut as to the cases in w hich he didn’t g o in any where and w as just told to stay p ut, we

are asking y o u to find h i m n o t g uilty

, a nd

even if y ou find him g uilty he is not g uilty o f
t h e g uns. You can find him g u ilty o f display ing the g un as a n a c complice, I
suppose, whi c h i s one of the thing s y ou have
t o f ind to make a robbery in the first deg ree

. B u t that doesn’t require y o u to find the special verdict firearm alleg ation in additio n

. You don’t h a v e t o do that. And we hope y ouF R O S T V

. V A

N B O E N I N G 36

don’t. And we think that the b asis f or not d o i n g that is that the g uns were out of h i s control.

According ly

, as the district court acknowledg ed, “contrary to F rost’s c ontention, the record shows defense counsel w as able
to and did arg ue th e s t a t e h a d failed to prove F rost was an accomplice.”

F ourth, the jury was fully in f ormed of the state’s burden
to prove each element of the crime bey ond a re a s o n a b le doubt, including a ccomplice liability

. F or ex ample, the prosecutor in closing arg ument stated:

Now I have divided my c losing arg ument into
two different parts. The r eason for that, ladies and g e ntlemen, is there really are two p arts in

some way s y ou look at this. The first part has
to do with the cha r ge s a nd the e vidence a nd has the state proven all of the elements and all of the crimes bey ond a reasonable doubt. And then the second part has to do w i t h t h e defense o f d

uress, and this is important because the first part, ag ain, the s t a t e has the burden. T o ge t to duress y o u really have to find the state p roves it s c a se bey ond a reasonable doubt . . . .

Additionally

, the jury in F rost’s trial was properly instructed

as to the state’s burden of proof by the judg e prior to opening statements, b y the p rosecution in closing

, and i n t h e formal jury instructions read before the jury rendered its verdict.F R O S T V

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N B O E N I N G 37

F inally

, F rost v oluntarily elected to con c e d e his involvement in the robberies when he decided to pursue the inconsistent d efense of duress. Under W ashing t o n l a w, a defendant must admit that he “ p a rticipated in the crime” in order to arg ue duress. W ash. Rev. Code § 9A.16.060(1 )( a ). A s the W ashing ton Supreme Court ex plained, “a defense of duress admits that the d efendant committed the unlawful act, but pleads an ex cuse for doing so

. . . [ and] a duress defense necessarily allows for no doubt that the defendant did the acts charg ed.” State v. Riker

, 869 P.2d 43, 5 2 (W ash. 19 9 4 ) (emphasis in orig inal).

There fore, althoug h the W ashing ton Supreme Court found that the trial court erred when it req u i r e d Frost to concede g uilt or criminal liability

, b y electing to ra i s e a duress arg ument, F rost nece s s a r ily had to admit that he committed the unlawful acts, a nd h e consequently knew that
any arg ument he made reg arding the state’s fa i l u r e t o prove g uilt was sig nificantly weakened. Although t h e trial judg e indisputably erred in prohibiting defense counsel f r om arg uing innocence, the mag nitude of t h a t error is c ertainly lessened by the fact that F rost voluntarily admi t t e d his involvement in each of the c h arg e d crimes by acknowledg ing his commission of them under oath while pur s u i ng a duress defense.

Thus, in lig ht of our review of the record, we should hold that the trial c ourt’s limitation o n defense c o u n s el’s closing
arg ument did not have a “substantial and injurious effect o r influence in determining the jury ’s verdict.” Brecht

, 5 0 7 U.S.

a t 637. There may be c ircumstances where a trial c o u r t ’s limitation on closing arg u m e n ts may not survive the Brecht harmless-error analy sis. That is not the case h ere. Consequently

, because F rost did not establish “actualF R O S T V

. V A

N B O E N I N G 38

prejudice,” we shoul d c onclude that h e is not entitled to habeas relief. Id

.

V I I

The Washin gton Supreme Court’s decision that the trial court’s restriction on closing arg ument did not con stitute
structura l e r ror was neither contrary to, nor a n unreasonable
ap p lication of, clearly established federal law as determined by the U nited States Supreme Court. I n lig ht of the Supreme Court’s ex p r ess instructions to ex ercise restraint in d efining clearly established f

e d eral law, to g rant deference to state courts under AEDPA, and to find structural error only in rare instances, the W ashing ton Supreme Court’s decision to a pply harmless-error analy

sis should have been respected.

The W ashing ton Supreme Court properly concluded that the trial court’s error was harmless. Reviewing the r ecord a s

a w hole, the trial court’s restriction on F rost’s closing
arg ument did not have a “substantial and i n j urious effect o r influence in determining the jury ’s verdict.” Brecht

, 5 0 7 U.S. at 637. T he record demonstrates that F rost was afforded the opportunity to present his primary defense—duress—and the
state was n o t relieved of its burd e n t o p rove F r ost g uilty bey ond a reasonable doubt. B e cause the W ashing ton Supreme Court’s decision is n either contra r y to nor an unreasonable application of Supreme Court law as set forth in Herring , F rost is not entitled to habeas relief.

I respectfully

dissent.