FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSHUA JAMES FROST,

Petitioner-Appellant,

v.

RON VAN BOENING, Superintendent,

Respondent-Appellee.

No. 11-35114

D.C. No.

2:09-cv-00725-

TSZ

OPINION

Appeal from the United States District Court

for the Western District of Washington

Thomas S. Zilly, Senior District Judge, Presiding

Argued and Submitted En Banc

June 26, 2013—Seattle, Washington

Filed April 29, 2014

Before: Alex Kozinski, Chief Judge, and Stephen

Reinhardt, Sidney R. Thomas, Kim McLane Wardlaw,

Richard A. Paez, Richard C. Tallman, Johnnie B.

Rawlinson, Jay S. Bybee, Consuelo M. Callahan, Milan D.

Smith, Jr. and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Thomas;

Dissent by Judge Tallman
2 FROST V. VAN BOENING

SUMMARY*

Habeas Corpus

The en banc court reversed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition challenging the trial

court’s decision to preclude defense counsel from making a

reasonable doubt argument to the jury.

The en banc court held that the trial court infringed

petitioner’s Sixth and Fourteenth Amendment rights by

precluding counsel from making a reasonable doubt argument

to the jury, that petitioner was deprived of his right to demand

that the jury find him guilty of all the elements of the crime,

that the burden of proof was unconstitutionally shifted, and

that petitioner’s right to present a closing argument was

violated. The en banc court held that these errors were

structural and not subject to harmless error review. The en

banc court reversed and remanded with instructions for the

district court to conditionally grant the writ.

Judge Tallman dissented, joined by Judges Rawlinson,

Bybee, Callahan, and M. Smith. Judge Tallman would

conclude that the state court’s interpretation of Herring v.

New York, 422 U.S. 853 (1975) (holding that preclusion of

closing argument in criminal defense trial is structural

constitutional error), as inapplicable to reverse petitioner’s

convictions, was neither contrary to nor an unreasonable

application of clearly established federal law, and that this

court is compelled under the Anti-Terrorism and Effective

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
FROST V. VAN BOENING 3

Death Penalty Act to grant deference to the state court’s

decision.

COUNSEL

Erik B. Levin, Berkeley, California, for Petitioner-Appellant.

John J. Samson, Assistant Attorney General, Olympia,

Washington, for Respondent-Appellee.

OPINION

THOMAS, Circuit Judge:

The Supreme Court has instructed that preclusion of

closing argument in a criminal defense trial is structural

constitutional error. Herring v. New York, 422 U.S. 853,

864–65 (1975). Joshua Frost had two legitimate defenses to

criminal charges, but the state trial court only permitted his

counsel to argue one theory in closing, and the court

specifically prohibited counsel from arguing that the State

had not met its burden of proof. Because this conceded

constitutional error requires a retrial under Herring, we

reverse the district court’s denial of federal habeas relief.

I

Frost is serving a 55-year prison sentence for his

convictions stemming from his involvement in five robberies

that occurred over eleven days. In the first robbery, three

men—Matthew Williams, Alexander Shelton, and
4 FROST V. VAN BOENING

Frost—robbed and burglarized the home of an elderly couple. 

Firearms were used, though Frost testified he did not carry a

gun. In the second robbery, Frost acted as the driver for

Shelton and Williams, who robbed a Taco Time restaurant

while armed with guns. In the third robbery, Shelton,

Williams, Frost, and another man participated in the robbery

of an adult video store. Frost again acted as the driver and

performed surveillance prior to the robbery by entering the

store and asking about the closing time and other questions. 

In the fourth robbery, Frost acted as driver for Williams and

Shelton, who robbed a 7/Eleven at gunpoint. During this

incident, Shelton threatened two customers in the store’s

parking lot with a gun. Finally, immediately following the

7/Eleven robbery, Frost drove Shelton and Williams to a

store, which they also robbed using firearms. During this

robbery, an employee was shot in the hand. Police arrested

Frost, Shelton, and Williams three days later. Frost was

charged with six counts of robbery, one count of burglary,

one count of attempted robbery, and three counts of assault. 

Most charges included firearms enhancements.

Frost admitted his involvement in the incidents in his trial

testimony and in recorded statements to police, which were

played at trial. The defense theory of the case was two-fold:

there was reasonable doubt as to whether Frost’s involvement

rose to the level of an accomplice and, regardless, any actions

he took were under duress. Defense counsel explained both

theories in his opening statement and developed both

throughout the trial.

During the jury instruction conference, the trial judge

responded to Frost’s proposed instruction by observing that

“duress is a defense which requires the defendant to admit the

elements of the crime before it can be raised.”
FROST V. VAN BOENING 5

After some discussion about the instruction, the following

colloquy occurred:

MR. WAGNILD [prosecutor]: My concern is

we are going to see him get up in closing and

argue, first of all, we haven’t proved

accomplice liability for any of them and then

saying duress.

THE COURT: If he says that[,] the duress

instruction will come out of the case.

MR. STIMMEL [defense counsel]: Excuse

me, your Honor?

THE COURT: You cannot argue to the jury

that the state hasn’t proved accomplice

liability and claim a duress defense. You

must opt for one or the other. Riker is very

clear on this. You must admit the elements of

the offense have been proved before you can

use the duress offense [sic]. Fortunately for

you, your client just got on the stand and

admitted everything except the assault in the

second degree charge. He admitted he knew

about it, he participated in every one of these

events and he at least assisted by being the get

away driver except for the assault in the

second degree charge. I can’t believe you

would disregard your client’s testimony.

MR. STIMMEL: But am I not permitted to

argue in the alternative, using duress and

failure to prove in the alternative?
6 FROST V. VAN BOENING

THE COURT: No. Duress is an affirmative

defense. To quote Riker, a defense of duress

admits that the defendant committed the

unlawful act but pleas an excuse for doing so. 

You may not argue both. Riker wouldn’t

stand up if that was the ability the defense has. 

Once the state proves its charges[,] the

defense says it is proved and that is when you

get an opportunity to raise this affirmative

defense and prove it by a preponderance. I

don’t see any other way to write it. There are

pages and pages about this.

The judge concluded the discussion by again warning

defense counsel not to try to argue both theories in closing. 

Thus, defense counsel was precluded from arguing reasonable

doubt, forced to at least tacitly admit the elements of the

crimes, and then put to the task of proving the duress defense

by a preponderance of the evidence.

As a result, defense counsel never argued in closing that

the State had failed to meet its burden of proof. He argued

only that Frost acted under duress due to threats from

Williams. Counsel admitted that the duress defense would

not absolve Frost of one, and possibly two, of the robberies.

In his rebuttal, the prosecutor pounced on the failure of

defense counsel to argue that the State hadn’t proven the

elements of the crime, calling it “noticeably absent,” and

saying:

Because if Mr. Stimmel had pointed you to

the law and pointed to the elements of the

offenses and he pointed to the firearm
FROST V. VAN BOENING 7

instruction and made his argument you would

realize that his argument is phoney, his

arguments don’t match up with what the law

is and that is really what we are here for.

The jury convicted Frost of all charges except for one

assault. The court sentenced him to almost 55 years in

prison. The Washington Court of Appeals affirmed Frost’s

convictions. State v. Frost, 128 Wash. App. 1026 (2005)

(unpublished).

The Washington Supreme Court narrowly affirmed on

different grounds. State v. Frost, 161 P.3d 361, 364 (Wash.

2007) (en banc). The court held that the trial judge

misinterpreted its precedent to preclude Frost from arguing

both that the prosecution failed to meet its burden of proof

beyond a reasonable doubt and that he acted under duress. Id.

at 366–67. The court noted that defendants may generally

present inconsistent defenses so long as they are supported by

evidence. Id. at 365. The court found an “evidentiary basis,

however slim, for counsel to argue that the State failed to

prove Frost participated in each of his accomplices’ criminal

acts with adequate knowledge of promotion or facilitation.” 

Id. at 368. This argument was “best illustrated by the

robberies in which Frost was only a driver and remained in

the car.” Id. at 368–69.

By preventing defense counsel from making both of his

legitimate arguments in his closing, the court unanimously

held, the trial judge violated Frost’s Fourteenth Amendment

right to due process and Sixth Amendment right to counsel. 

Id. at 365–66, 368–69. “[I]n accordance with due process,

the State was required to prove the elements of accomplice

liability, beyond a reasonable doubt, as to each offense.” Id.
8 FROST V. VAN BOENING

at 368 (citing In re Winship, 397 U.S. 358, 364 (1970)). By

preventing defense counsel from arguing reasonable doubt in

closing, the trial judge “lessened the State’s burden to some

degree” and “infringed upon Frost’s due process rights.” Id.

The trial court’s “undue limitation on the scope of defense

counsel’s closing argument” also violated Frost’s Sixth

Amendment right to counsel under Herring, 422 U.S. at 862,

which held that a defendant is entitled to closing argument. 

Frost, 161 P.3d at 365–66, 369.

Nonetheless, a bare majority of the court held this error

was “not so egregious as to require automatic reversal,” id. at

370, and found the error harmless, id. at 369–71. Four

justices dissented, arguing that preventing defense counsel

from arguing reasonable doubt was structural error under

Herring. Id. at 371–72 (Sanders, J., dissenting). The

Supreme Court denied certiorari. Frost v. Washington,

552 U.S. 1145 (2008).

Frost filed a federal habeas petition, which the district

court denied. Frost v. Van Boening, No. C09-725Z, 2011 WL

486198 (W.D. Wash. Feb. 4, 2011). A divided panel of this

court affirmed. Frost v. Van Boening, 692 F.3d 924 (9th Cir.

2012). A majority of the non-recused active judges voted to

rehear the case en banc. Frost v. Van Boening, 707 F.3d

1143 (9th Cir. 2013).

II

As the Washington Supreme Court correctly concluded,

the state trial court unconstitutionally precluded defense

counsel from arguing reasonable doubt, under both Herring

and Winship. The only question is whether these
FROST V. VAN BOENING 9

constitutional violations are subject to harmless error

analysis.

The Supreme Court has divided constitutional errors into

two categories: trial errors, which are subject to harmless

error review, and structural errors, which require automatic

reversal. Arizona v. Fulminante, 499 U.S. 279, 306–10

(1991). “[M]ost constitutional errors can be harmless.” Id.

at 306; see also id. at 306–07 (citing examples of nonstructural errors). These errors are deemed trial errors

“because the errors ‘occurred during presentation of the case

to the jury’ and their effect may ‘be quantitatively assessed in

the context of other evidence presented in order to determine

whether [they were] harmless.’” United States v. GonzalezLopez, 548 U.S. 140, 148 (2006) (quoting Fulminante,

499 U.S. at 307–08).

In contrast, structural errors “defy analysis by harmlesserror standards because they affect the framework within

which the trial proceeds, and are not simply an error in the

trial process itself.” Id. (internal quotation marks and

alteration omitted). Structural errors include the denial of

counsel of one’s choice, id. at 150; racial discrimination in

grand jury selection, Vasquez v. Hillery, 474 U.S. 254,

263–64 (1986); and proceeding before a conflicted or biased

judicial officer, Tumey v. Ohio, 273 U.S. 510, 535 (1927). 

See also Washington v. Recuenco, 548 U.S. 212, 218 n.2

(2006) (listing other examples).

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

a state prisoner’s application for a writ of habeas corpus if the

state-court adjudication pursuant to which the prisoner is held

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,
10 FROST V. VAN BOENING

as determined by the Supreme Court of the United States.” 

Howes v. Fields, __ U.S. __, 132 S. Ct. 1181, 1187 (2012)

(internal quotation marks omitted). A state court’s decision

is “contrary to” clearly established Federal law if it “applies

a rule that contradicts the governing law set forth in [Supreme

Court] cases or if it confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme Court] and

nevertheless arrives at a result different from [Supreme

Court] precedent.” Early v. Packer, 537 U.S. 3, 8 (2002)

(internal quotation marks omitted). A decision is an

“unreasonable application of” federal law if it “‘identifies the

correct governing principle from [the Supreme Court’s]

decisions but unreasonably applies that principle to the facts

of the prisoner’s case.’” Yarborough v. Alvarado, 541 U.S.

652, 663 (2004) (quoting Williams v. Taylor, 529 U.S. 362,

413 (2000)).

A

In assessing whether the error in this case is structural,

our task is easy because the Supreme Court has determined

that Herring error is structural. Herring, 422 U.S. at 864–65. 

The Supreme Court reaffirmed this aspect of Herring more

recently in Bell v. Cone, 535 U.S. 685, 696 n.3 (2002), which

recognized that Herring did not require a showing of

prejudice. Herring concerned a bench trial where the judge,

pursuant to a state law, refused to allow the defense or

prosecution to present closing arguments. 422 U.S. at 856. 

The Supreme Court held that this denial violated Herring’s

Sixth Amendment right to counsel by denying him the right

to “participate fully and fairly in the adversary factfinding

process,” of which closing argument was a “basic element.” 

Id. at 858.
FROST V. VAN BOENING 11

The Court held that “only after all the evidence is in” are

the attorneys “in a position to present their respective

versions of the case as a whole.” Id. at 862. “And for the

defense, closing argument is the last clear chance to persuade

the trier of fact that there may be reasonable doubt of the

defendant’s guilt.” Id. (citing Winship, 397 U.S. 358). No

matter how “open and shut” the prosecution’s case may seem,

there are “cases where closing argument may correct a

premature misjudgment and avoid an otherwise erroneous

verdict.” Id. at 863. “And there is no certain way for a trial

judge to identify accurately which cases these will be, until

the judge has heard the closing summation of counsel.” Id.

For these reasons, we have held that preventing a defendant

fromarguing a legitimate defense theoryconstitutes structural

error. United States v. Miguel, 338 F.3d 995, 1000–03 (9th

Cir. 2003); Conde v. Henry, 198 F.3d 734, 739 (9th Cir.

2000).1

The denial of closing argument here was far worse than

what occurred in Herring. In Herring neither the prosecution

nor the defense made a closing argument. But in this case,

the judge denied Frost one of his defense theories in closing

argument, while the prosecution freely argued both that it had

met its burden of proof and that Frost had not established

duress. Defense counsel was forced to counter this closing

with “one hand tied behind his back.” Frost v. Van Boening,

692 F.3d at 936 (McKeown, J., dissenting). That denial

 

1

 Although our decisions do not constitute “clearly established Federal

law” for the purposes of 28 U.S.C. § 2254(d)(1), “[o]ur cases may be

persuasive authority for purposes of determining whether a particular state

court decision is an ‘unreasonable application’ of Supreme Court law, and

also may help us determine what law is ‘clearly established.’” Duhaime

v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000).
12 FROST V. VAN BOENING

offended the “adversary system of criminal justice” far more

than the equal denial of argument in Herring. See Herring,

422 U.S. at 862; cf. United States v. Cronic, 466 U.S. 648,

659 (1984) (“[I]f counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing, then

there has been a denial of Sixth Amendment rights that makes

the adversary process itself presumptively unreliable.”).

Precluding defense counsel from arguing a legitimate

defense theory would, by itself, constitute structural error. 

But there is much more to the problem in this case. As the

Supreme Court recognized, the Sixth Amendment violation

in Herring was intertwined with the requirement under the

Due Process Clause that the prosecution prove all the

elements of an offense beyond a reasonable doubt, as

recognized in Winship. See Herring, 422 U.S. at 862 (citing

Winship, 397 U.S. 358). In Winship, the Supreme Court held

that the Due Process Clause requires the prosecution in a

criminal proceeding to prove all elements of the crime

beyond a reasonable doubt. 397 U.S. at 364. As the Court

explained, “[t]he standard provides concrete substance for

the presumption of innocence—that bedrock ‘axiomatic and

elementary’ principle whose ‘enforcement lies at the

foundation of the administration of our criminal law.’” Id. at

363 (quoting Coffin v. United States, 156 U.S. 432, 453

(1895)). Thus, due process requires that “each element of a

crime be proved to the jury beyond a reasonable doubt.” 

Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151, 2156

(2013). Simply put, “[t]he Constitution gives a criminal

defendant the right to demand that a jury find him guilty of

all the elements of the crime with which he is charged.” 

United States v. Gaudin, 515 U.S. 506, 511 (1995).
FROST V. VAN BOENING 13

As the Court recognized in Herring, the primary purpose

of a defendant’s closing is to hold the State to its burden of

proof. See 422 U.S. at 862 (“[C]losing argument is the last

clear chance to persuade the trier of fact that there may be

reasonable doubt of the defendant’s guilt.”).

Here, Frost wanted to argue that the State had not

satisfied its burden of proving beyond a reasonable doubt that

his actions satisfied the elements of accomplice liability. But

he was deprived of the fundamental “right to demand that a

jury find him guilty of all the elements of the crime.” 

Gaudin, 515 U.S. at 511. Instead, to the contrary, the trial

court instructed defense counsel that “[y]ou must admit the

elements of the offense have been proved before you can use

the duress [defense].” While defense counsel was prohibited

from making a reasonable doubt argument, the State was

given an unfettered opportunity to argue that it had proved its

case beyond reasonable doubt. And the State took full

advantage of that opportunity. By forcing defense counsel to

concede his client’s guilt, the trial court struck at the

fundamental presumption of innocence.

Not only did the trial court’s action deprive Frost of his

right to “insist that his guilt be established beyond a

reasonable doubt,” Herrera v. Collins, 506 U.S. 390, 398

(1993), it was tantamount to a directed verdict on guilt. It is

axiomatic that a judge “may not direct a verdict for the State,

no matter how overwhelming the evidence.” Sullivan v.

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

Martin Linen Supply Co., 430 U.S. 564, 572–73 (1977);

United Bhd. of Carpenters & Joiners of Am. v. United States,

330 U.S. 395, 408 (1947); Sparf v. United States, 156 U.S.

51, 105 (1895). In determining whether the trial court’s

action constituted a directed verdict, we look to the ruling’s
14 FROST V. VAN BOENING

effect, not its form. Cf. Martin Linen Supply Co., 430 U.S. at

571 (noting that, rather than looking strictly at the form of the

ruling, “we must determine whether the ruling of the judge,

whatever its label, actually represents a resolution, correct or

not, of some or all of the factual elements of the offense

charged”). The record of this case leaves little doubt that the

trial judge’s actions took the question of reasonable doubt

away from the jury.

Winship further teaches that a defendant cannot

constitutionally be tried using a lesser burden of proof. 

397 U.S. at 364–65. Due process does not permit shifting the

burden of proof to the defendant by the use of conclusive or

burden-shifting presumptions. Mullaney v. Wilbur, 421 U.S.

684, 703–04 (1975). By requiring defense counsel to

concede his client’s guilt before arguing his affirmative

defense, the trial court relieved the State of its burden of

proving guilt beyond a reasonable doubt and shifted the

burden of proof to Frost of proving his duress defense by a

preponderance of the evidence. The trial court was explicit

on this point. It instructed that once “the defense says [the

crime] is proved . . . that is when you get an opportunity to

raise this affirmative defense and prove it by a

preponderance.” The case was impermissibly and

unconstitutionally tried to the jury with the burden of proof

on Frost.2

2 The dissent argues that “the judge presented a choice to Frost as

opposed to handing down a prohibition or mandate.” This is material,

according to the dissent, because “had Frost unwisely pursued his failureof-proof argument in lieu of his duress defense, these ancillary

constitutional issues . . . would be deprived of their supporting role.” If

it were a choice, it was a Hobson’s choice, the result of which allowed the

burden of proof to be shifted to Frost. The judge forced Frost to abandon

one of his two defense theories, and that restriction resulted in structural
FROST V. VAN BOENING 15

In sum, there is no question that the trial court violated

Frost’s due process rights under a long line of clearly

established Supreme Court precedent. The trial court

unconstitutionally violated Frost’s right to closing argument

under Herring. Frost was deprived of his right to demand

that a jury find him guilty of all the elements of the crime

with which he is charged under Winship and Gaudin. The

trial court’s actions in forcing defense counsel to concede

guilt amounted to an unconstitutional directed verdict under

Sullivan and Martin Linen Supply Co. The burden of proof

was unconstitutionally shifted to Frost in violation of Winship

and Mullaney. These types of errors strike at the heart of the

presumption of innocence and the defendant’s right to contest

that the State prove its case beyond a reasonable doubt. If the

presumption of innocence is missing from a trial, then there

has been no jury verdict within the meaning of the Sixth

Amendment. Sullivan, 508 U.S. at 278. Theses types of

errors are unquestionably structural under Herring, Winship,

and Sullivan.

B

Against this long line of Supreme Court precedent, the

State still insists that precluding defense counsel from

arguing reasonable doubt is a mere trial error, subject to

harmless error analysis. The State relies on Herring’s

unremarkable observation that trial courts have “great latitude

in controlling the duration and limiting the scope of closing

summations.” 422 U.S. at 862. The State, however, ignores

the import of that passage in Herring. Herring quite

reasonably distinguished reasonable restrictions on closing

errors beyond the Herring error, regardless of how the restriction is

labeled and regardless of the fact that Frost could have chosen differently.
16 FROST V. VAN BOENING

argument from unconstitutional denials of closing argument. 

Reasonable restrictions on closing argument do not constitute

error at all, much less constitutional error. Total preclusion

of argument is constitutional error, which Herring instructs

is structural error. In 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 create some intermediate category of

Herring error subject to harmless error analysis.

The error here was undoubtedly a Herring error despite

the dissent’s contention that the “complete denial of closing

argument at issue in Herring cannot be equated with the

limitations on closing argument imposed in Frost’s trial.” 

The dissent characterizes the error as a mere limitation on the

scope of Frost’s closing argument when in fact it was an

absolute preemption of one of his factually supported, legally

available defense theories. Finding Herring error here does

not, as the dissent argues, amount to an “expansive

interpretation of Herring” and does not “infer a broader rule

from Herring.” The error here amounted to a total denial of

closing argument on a legitimate defense theory and is thus

squarely within the Herring rule. Likewise, finding Herring

error here does not create the “substantial negative

consequences” presented by the dissent, where this was not

a discretionary limitation of closing argument.

Indeed, the Washington Supreme Court did not leave us

in doubt as to what type of error was involved in this case. It

explicitly held that the error here was Herring error, not mere

trial error. It unanimously rejected the State’s attempt to

distinguish Herring on the basis that the trial judge was

simply exercising his discretion to place legitimate and

reasonable limits on closing arguments. Instead, it expressly
FROST V. VAN BOENING 17

held that the trial court’s limitation on closing argument

violated Frost’s due process and Sixth Amendment rights. 

Frost, 161 P.3d at 369. Once the Washington Supreme Court

correctly determined that the trial judge committed Herring

and Winship error, the error was necessarily structural.

In applying a harmless error review, the Washington

Supreme Court majority held that it was “as equipped to

assess whether the trial court’s mistake in limiting closing

argument affected the outcome of this case as it is to conduct

other harmless error analyses, such as those regarding an

erroneous instruction or evidentiary decision.” Id. at 370. 

But this reasoning contradicts Herring, which held that no

matter how strong the evidence may seem, complete denial of

closing argument constitutes structural error. See 422 U.S. at

863. And a judge may not functionally direct a verdict for the

State, “no matter how overwhelming the evidence.” Sullivan,

508 U.S. at 277. By concluding it should conduct a harmless

error analysis after finding structural errors, as determined by

the Supreme Court in Herring and Winship, the Washington

Supreme Court unreasonably applied clearly established

Federal law.

III

The trial court infringed Frost’s Sixth and Fourteenth

Amendment rights when it precluded his counsel from

making a reasonable doubt argument to the jury. Frost was

deprived of his right to demand that a jury find him guilty of

all the elements of the crime. The trial court’s action

amounted to a directed verdict of guilty. The burden of proof

was unconstitutionally shifted. Frost’s right to present a

closing argument was violated. These constitutional

violations were structural and not subject to harmless error
18 FROST V. VAN BOENING

review. We therefore reverse the district court’s denial of

Frost’s habeas petition and remand with instructions for the

district court to conditionally grant the writ. We deny as

moot all pending motions and decline to expand the

certificate of appealability.

REVERSED and REMANDED.

Judge TALLMAN, with whom Judges RAWLINSON,

BYBEE, CALLAHAN, and M. SMITH join, dissenting:

The United States Supreme Court has never extended its

holding in Herring v. New York, 422 U.S. 853 (1975), to

support the majority’s claim of structural error where the

affirmative defense of duress necessarily requires admission

of the criminal conduct sought to be excused. There is a

fundamental difference between the complete denial of

closing argument at issue in Herring and the limitations on

closing argument imposed in Frost’s trial. By declaring

structural error in this circumstance, our court once again

ignores the Supreme Court’s trenchant instructions to

exercise restraint in defining clearly established federal law,

to grant deference to state courts under the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), and to find

structural error only in rare instances. In light of these oftrepeated directives, we should conclude that the Washington

Supreme Court’s interpretation of Herring, as inapplicable to

reverse Frost’s convictions, was neither contrary to nor an

unreasonable application of clearly established federal law,

and that we are compelled under AEDPA to grant deference

to the state court’s decision. See Harrington v. Richter,

131 S. Ct. 770, 785 (2011).
FROST V. VAN BOENING 19

I

The majority’s interpretation of Herring is not the only

reasonable 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—restricting

Frost’s closing argument to permit either a failure-of-proof

argument or a duress defense (and not both)—was structural

and not subject to harmless-error analysis. That argument

misconstrues and unjustifiably extends this Supreme Court

precedent. Herring simply held that a court’s “total denial”

of closing argument constituted structural error. Id. at

858–59, 863–65. Herring is silent on whether an erroneous

limitation requiring a defendant to choose between two

incompatible defenses, such as the one imposed by the trial

court in this case, is structural error.

In Herring, the defendant was denied any opportunity to

make a closing argument before judgment was rendered in a

criminal bench trial. Id. At the conclusion of the bench trial,

Herring’s counsel asked “to be heard somewhat on the facts.” 

Id. at 856. Relying on a New York statute that “confer[red]

upon every judge in a nonjury criminal trial the power to

deny counsel any opportunity to make a summation of the

evidence before the rendition of judgment,” id. at 853, the

judge responded, “I choose not to hear summations,” id. at

856. The judge then found Herring guilty of the crime

charged. Id.

The Supreme Court vacated the conviction, holding that

the utter denial of closing argument violated Herring’s right

to counsel. Id. at 857–65. The Court concluded that “there

can be no justification for a statute that empowers a trial

judge to deny absolutely the opportunity for any closing
20 FROST V. VAN BOENING

summation at all.” Id. at 863 (emphasis added). The

Supreme Court stated that “[t]here can be no doubt that

closing argument for the defense is a basic element of the

adversary factfinding process in a criminal trial” and that “a

total denial of the opportunity for final argument in a nonjury

criminal trial” violates the Sixth Amendment. Id. at 858–59. 

As a result, the Court held that denying counsel any

opportunity to make a closing argument is structural error. 

Id.

In announcing its decision, however, the Court was

careful to observe that there is a fundamental difference

between a complete denial of closing argument and a

limitation on the scope of closing argument. The Court

acknowledged what every trial judge knows: that mere

limitations on closing arguments do not constitute structural

error because “[t]he presiding judge must be and is given

great latitude in controlling the duration and limiting the

scope of closing summations.” Id. at 862. This is consistent

with longstanding precedent under which we have held that

a trial judge has broad discretion to control closing argument. 

See United States v. Guess, 745 F.2d 1286, 1288 (9th Cir.

1984).

The complete denial of closing argument at issue in

Herring cannot be equated with the limitations on closing

argument imposed in Frost’s trial. Unlike in Herring, the

trial judge allowed Frost’s counsel to make a closing

argument. The judge restricted the scope of that argument,

incorrectly requiring counsel to choose between two

conflicting defenses, but permitting counsel to argue one. 

Frost’s counsel elected to argue Frost’s duress. Herring does

not compel the conclusion that a court’s ruling that restricts

the scope of argument, but does not entirely prohibit closing
FROST V. VAN BOENING 21

argument, is structural error. Frost’s claim requires more

than simply applying the rule announced in Herring to a

different factual scenario. Application of Herring to Frost’s

case inappropriately extends the Supreme Court’s holding to

a novel legal question that it has never addressed.

II

A

The majority’s expansive interpretation ofHerring cannot

be reconciled with the Supreme Court’s instructions to only

find structural error in rare instances. The Court has

“repeatedly recognized that the commission of a

constitutional error at trial alone does not entitle a defendant

to automatic reversal. Instead, most constitutional errors can

be harmless.” Washington v. Recuenco, 548 U.S. 212, 218

(2006) (internal quotation marks omitted). “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 counsel, a biased trial judge, a

defective instruction defining proof beyond a reasonable

doubt, denial of self-representation at trial, and racial

discrimination in the selection of the grand jury. Id. at

218–19 n.2.

The Supreme Court has determined that “if the defendant

had counsel and was tried by an impartial adjudicator, there

is a strong presumption that any other [constitutional] errors

that may have occurred are subject to harmless-error

analysis.” Id. at 218 (internal citations and quotations

omitted). The Court has found the following errors to be

subject to harmless-error review: jury instructions that

misstate an element of the offense; improper comment on
22 FROST V. VAN BOENING

defendant’s silence at trial in violation of the Fifth

Amendment Self-Incrimination Clause; failure to instruct the

jury on the presumption of innocence; and failure to give a

jury instruction on a lesser included offense in a capital case

in violation of the Due Process Clause. Arizona v.

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

The Washington Supreme Court correctly concluded that

“the error [committed by the trial court] [wa]s not so

egregious as to require automatic reversal” and was

comparable to the errors that the Supreme Court has

previously found harmless. State v. Frost, 161 P.3d 361, 370

(Wash. 2007) (en banc). The error “occurred during the

presentation of the case to the jury, and [could] therefore be

quantitatively assessed in the context of other evidence

presented in order to determine whether [it] was harmless

beyond a reasonable doubt.” Fulminante, 499 U.S. at

307–08. Reviewing the record as a whole, the Washington

Supreme Court correctly concluded that the error committed

in Frost’s case was of similar magnitude and impact as other

constitutional violations found by the United States Supreme

Court to be harmless.

In the absence of a United States Supreme Court opinion

holding that partial restrictions on closing argument amount

to structural error, and in light of the Court’s precedent that

most errors are subject to harmless-error review, the

Washington Supreme Court’s conclusion that the error

identified by Frost was harmless was not objectively

unreasonable. In holding that it was, the majority not only

fails to grant appropriate deference as required by AEDPA,

but it also ignores the Supreme Court’s admonition to find

structural error only in rare and limited circumstances. When

it elected to extrapolate a novel rule from Herring that was
FROST V. VAN BOENING 23

neither considered nor addressed by the Supreme Court, the

majority failed to heed the Supreme Court’s warning that

constitutional errors are strongly presumed to be harmless.

B

The majority concludes that we must infer a broader rule

from Herring—that structural error also occurs when a trial

court limits the scope of closing argument, prohibiting a

defendant from arguing a defense or claim but permitting

closing argument on the primary defense theory. But the

Supreme Court has repeatedly admonished us not to infer

extensions from the rules identified in its opinions. See, e.g.,

Nevada v. Jackson, 133 S. Ct. 1990, 1994 (2013) (per

curiam); Richter, 131 S. Ct. at 785.

The fact that a rule might be necessarily implied from a

Supreme Court decision is insufficient to show that the rule

is clearly established federal law under AEDPA. See, e.g.,

Wright v. Van Patten, 552 U.S. 120, 124–26 (2008) (per

curiam) (holding that no prior Supreme Court decision

provided a “categorical answer” to the question of whether

prejudice may be presumed when defense counsel

participated in a plea hearing by telephone, stating “[b]ecause

our cases give no clear answer to the question presented . . .

it cannot be said that the state court unreasonabl[y] appli[ed]

clearly established Federal law”); Kane v. Garcia Espitia,

546 U.S. 9, 10 (2005) (per curiam) (“[I]t is clear that [a

defendant’s right to self-representation under] Faretta does

not, as § 2254(d)(1) requires, ‘clearly establis[h]’ the law

library access right[;] [i]n fact, Faretta says nothing about

any specific legal aid that the State owes a pro se criminal

defendant.”).
24 FROST V. VAN BOENING

In Jackson, the Supreme Court unanimously reversed us

for extending the rules announced in its opinions. 133 S. Ct.

at 1990–94. The three-judge Jackson panel had relied upon

“Supreme Court decisions holding that various restrictions on

a defendant’s ability to cross-examine witnesses violate the

Confrontation Clause of the Sixth Amendment.” Id. at 1994

(emphasis in original). The panel then inferred from these

cases the specific rule that “the Confrontation Clause entitles

a criminal defendant to introduce extrinsic evidence for

impeachment purposes.” Id. (emphasis in original).

Our Jackson panel made this leap in logic, “elid[ing] the

distinction between cross-examination and extrinsic evidence

by characterizing the cases as recognizing a broad right to

present ‘evidence bearing on [a witness’] credibility.’” Id.

(second alteration in original). In reversing that opinion, the

Supreme Court pointedly stated that “[b]y framing our

precedents at such a high level of generality, a lower federal

court could transform even the most imaginative extension of

existing case law into ‘clearly established Federal law, as

determined by the Supreme Court.’” Id.

The majority repeats the same mistake committed by our

Jackson panel. It has extended the narrow holding in Herring

to find structural error where a defendant is prevented from

arguing in closing one of several inconsistent defense

theories. It does this despite the fact that the Court has

repeatedly and expressly instructed us to exercise restraint

when defining clearlyestablished federal law—an instruction

that the majority all too readily ignores. See, e.g., Richter,

131 S. Ct. at 785; see also Williams v. Taylor, 529 U.S. 362,

385–86 (2000) (stating that AEDPA created a “‘mood’ that

the Federal Judiciary must respect” in that “federal judges

[should] attend with the utmost care to state-court decisions
FROST V. VAN BOENING 25

. . . before concluding that those proceedings were infected by

constitutional error sufficiently serious to warrant the

issuance of the writ”).

AEDPA deference requires that a claim be based upon a

Supreme Court decision that existed at the time of the state

court adjudication. The Washington Supreme Court correctly

concluded that the United States Supreme Court’s decision in

Herring did not extend to restrictions on closing argument

that fall short of outright prohibitions. We should abide by

the AEDPA statutory restriction and accord Washington’s

highest court the comity that Congress and the Supreme

Court require.

C

The logical extension of the majority’s rule would be to

declare structural error and require automatic reversal any

time a trial judge erred in placing limits on closing argument

because petitioner could argue that, as to the contested issue,

the limitation resulted in a total denial of closing argument on

a legitimate defense theory. This result is apparent when you

look below the surface of the majority’s all-or-nothing

argument, which amounts to stating, “If you don’t like your

closing argument and can find any error, no matter how

small, we won’t hold you to your conviction.” This logic

would require convictions to be vacated and new trials

granted on a number of lesser errors, which may now be

deemed structural.

For example, if structural error is found in this case, how

could we say that structural error does not also occur when a

trial judge improperlyexcludes exculpatory evidence without

regard to materiality and forbids defense counsel from
26 FROST V. VAN BOENING

commenting on it in closing? In both instances, the defendant

is prohibited from effectively claiming innocence and from

comprehensively arguing all theories that support that

defense. Structural error may also be found when a trial

judge improperly restricts closing argument by imposing time

limitations that necessarily require the defense to choose

among multiple arguments to emphasize during summation. 

Claims of structural error may also be made when a judge

adopts any number of limitations that inhibit defense counsel

from making their most effective and comprehensive

argumentssupporting a defendant’s innocence without regard

to any evidence supporting the claim or the context from

which the argument is to be made. That cannot be the law

and the Supreme Court has never said anything of the sort.

There are substantial negative consequences to

interpreting the Supreme Court’s decision in Herring

expansively and increasing the number of errors deemed

structural. Doing so eliminates any need to establish

prejudice to show that the defendant was deprived of a fair

trial. The majority’s interpretation, and its undeniable effect,

cannot be reconciled with our limited role in habeas

proceedings involving review of state convictions under

AEDPA.

III

The majority cites to two Ninth Circuit cases, Conde v.

Henry, 198 F.3d 734 (9th Cir. 1999), and United States v.

Miguel, 338 F.3d 995 (9th Cir. 2003), to conclude “that

preventing a defendant from arguing a legitimate 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 as determined
FROST V. VAN BOENING 27

by the Supreme Court and is not, alone, a basis for the Court

to grant habeas relief.” See Renico v. Lett, 559 U.S. 766, 779

(2010) (stating that a decision of the court of appeals “does

not constitute clearly established Federal law, as determined

by the Supreme Court, § 2254(d)(1), so any failure to apply

that decision cannot independently authorize habeas relief

under AEDPA.” (internal quotation marks omitted));see also

Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per

curiam) (stating that “circuit precedent does not constitute

clearly established Federal law,” and it “cannot form the basis

for habeas relief under AEDPA”). Consequently, our

decisions in Conde and Miguel are insufficient to find that the

Washington 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.

Furthermore, even if Conde or Miguel were instructive in

defining clearly established federal law, both cases are

distinguishable. Importantly, neither case involved a

petitioner seeking habeas relief post-AEDPA, so neither case

bound our court to AEDPA’s deferential review standards on

appeal. On federal habeas review, we must uphold the

Washington Supreme Court’s adjudication of Frost’s claim

unless we conclude that its interpretation limiting the

extension of Herring was objectively unreasonable, and not

merely because we would have reached a contrary

interpretation. See Renico, 559 U.S. at 776 (“AEDPA

authorizes federal courts to grant relief only when state courts

act unreasonably.”).

In Conde, a pre-AEDPA habeas appeal, we concluded

that structural error occurred because “the trial court

improperly precluded Conde’s attorney from making closing

argument explaining the defendant’s theory of the case, it
28 FROST V. VAN BOENING

refused to instruct the jury on the defendant’s theory, and,

over the defendant’s objection, it gave jury instructions that

did not require that the jury find every element of the

offense.” 198 F.3d at 741. “Together,” we found, “these

errors deprived the petitioner of effective assistance of

counsel, due process and trial by jury on every element of the

charged crime.” Id.

In Miguel, a direct appeal from a federal criminal

proceeding, we held that structural error occurred when the

district court precluded defense counsel from arguing during

closing that someone other than the defendant shot the victim

and that no evidence supported the defense theory. 338 F.3d

at 1000–01. Although we cited to Herring in so ruling, our

decision in Miguel insufficiently establishes under AEDPA

that the Washington Supreme Court’s determination in this

case was contrary to, or an unreasonable application of,

clearly established federal law.

Here, after he had taken the stand and admitted to

participating in an eleven-day crime spree, Frost was

permitted to argue during closing argument that he committed

the crimes under duress—the primary defense theory in his

case. Further, as the Washington Supreme Court and the

district court highlighted, “[t]he record clearly shows the

prosecutor argued it was the state’s burden to prove that Frost

was an accomplice and to prove beyond a reasonable doubt

each and every element of the charged offenses.” Frost v.

Van Boening, No. C09-725-TSZ-BAT, 2010 WL5775657, at

*8 (W.D. Wash. Oct. 5, 2010) (adopted by Frost v. Van

Boening, No. C09-725Z, 2011 WL486198 (W.D. Wash. Feb.

4, 2011)); see Frost, 161 P.3d at 364 (“In closing, the

prosecutor repeatedly mentioned the State’s burden of proof

as to Frost’s robbery offenses. Likewise, the jury was
FROST V. VAN BOENING 29

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

as well as the requirements to prove accomplice liability in

particular.” (internal citation omitted)). Thus, the jury

received ample instruction on the cardinal principles of

criminal law and it was properly equipped to apply the facts,

as it found them, to the legal framework.

By relying on circuit precedent to find structural error, the

majority also ignores the Supreme Court’s recent admonition

in Marshall v. Rodgers, 133 S. Ct. 1446 (2013) (per curiam). 

In reversing us in Marshall, the Court noted that our opinion

“rested in part on the mistaken belief that circuit precedent

may be used to refine or sharpen a general principle of

Supreme Court jurisprudence into a specific legal rule that

this Court has not announced.” Id. at 1450. It reiterated that

in reviewing habeas petitions we “may not canvass circuit

decisions to determine whether a particular rule of law is so

widely accepted among the Federal 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 employed

to grant Frost’s habeas petition. Given our limited review

under AEDPA, our decisions in Conde and Miguel do not

establish that the Washington Supreme Court’s decision to

apply harmless-error review was contrary to or involved an

unreasonable application of clearlyestablished federal law, as

determined by the Supreme Court. Absent such a showing,

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

IV

The majority also bends the facts of the case in its favor

by framing a choice as a mandate. The majority asserts that

the judge “specifically prohibited counsel from arguing that
30 FROST V. VAN BOENING

the State had not met its burden of proof” and that “defense

counsel was precluded from arguing reasonable doubt.” But

that is incorrect. The trial judge repeatedly indicated that

Frost was free to assert that the prosecution had not proved

accomplice liability. But the judge also noted, albeit in error,

that such a choice would have consequences, informing Frost

that “[i]f he [argued failure of proof during closing,] the

duress instruction will come out of the case.” By requiring

Frost to “opt for one [theory] or the other,” the judge

presented a choice to Frost as opposed to handing down a

prohibition or mandate. And, although the judge may have

hinted at his belief that abandoning the duress defense and

electing to argue that the prosecution had not satisfied its

burden of proof would be unwise, the judge did not usurp

Frost’s choice.1

This is material to the analysis because the majority finds

support for its structural-error conclusion based on Frost’s

1 The majority asserts that any choice Frost had “was a Hobson’s choice,

the result of which allowed the burden of proof to be shifted to Frost.” 

But a Hobson’s choice, which requires selection between something or

nothing, is only present here if we view Frost as being forced to choose

between pursuing an affirmative duress defense or mounting no defense

at all. This may be true given that Frost had already thrice confessed and

then testified to participating in the crimes, but if so, any Hobson’s choice

was of his own making. As opposed to a Hobson’s choice, Frost’s

predicament is more akin to “Morton’s Fork.” Burroughs v. MetroGoldwyn-Mayer, Inc., 683 F.2d 610, 623 n.13 (2d Cir. 1982) (describing

“Morton’s Fork” in the context of a different legal dispute). The trial

court erroneously made Frost choose between two theoretically opposite

tines, both of which led to an equally undesirable outcome—conviction. 

Upon cry of “error,” and at the public’s expense, the majority suspends

reality and charts Frost a new course around both Scylla and Charybdis. 

AEDPA prevents such safe passage when the resulting shipwreck was

inevitable.
FROST V. VAN BOENING 31

actions instead of the judge’s. The majority concludes that by

“depriv[ing] Frost of his right to ‘insist that his guilt be

established beyond a reasonable doubt,’” the trial judge

essentially entered a “directed verdict on guilt.” Relying on

Supreme Court cases that instruct both (1) that a defendant

cannot constitutionally be tried under a lesser burden of proof

and (2) that due process prevents a state from shifting the

burden of proof to the defendant, the majority concludes that

“the trial judge’s actions took the question of reasonable

doubt away from the jury” such that the “case was

impermissiblyand unconstitutionally tried to the jurywith the

burden of proof on Frost.” But this overlooks Frost’s role. 

After all, had Frost unwisely pursued his failure-of-proof

argument in lieu of his duress defense, these ancillary

constitutional issues that the majority leans on would be

deprived of their supporting role.

V

AEDPA mandates that “a state prisoner seeking a writ of

habeas corpus from a federal court ‘must show that the state

court’s ruling on the claim being presented in federal court

was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any

possibility for fairminded disagreement.’” Bobby v. Dixon,

132 S. Ct. 26, 27 (2011) (per curiam) (quoting Richter, 131 S.

Ct. at 786–87). In the absence of a Supreme Court holding

that the error in this case was structural error—and in light of

the Court’s recurring precedent that most errors are subject to

harmless-error analysis and that clearly established federal

law must be interpreted narrowly—the Washington Supreme

Court’s conclusion that harmless error applies here was not

objectively unreasonable.
32 FROST V. VAN BOENING

AEDPA does not permit us to reject a state court’s

interpretation of Supreme Court precedent simply because we

disagree. See, e.g., Lockyer v. Andrade, 538 U.S. 63, 75

(2003). In Lockyer, the Supreme Court reversed our decision

to grant habeas relief, explaining:

It is not enough that a federal habeas court, in

its “independent review of the legal question,”

is left with a “firm conviction” that the state

court was “erroneous.” We have held

precisely the opposite: “Under § 2254(d)(1)’s

‘unreasonable application’ clause, then, a

federal habeas court may not issue the writ

simply because that court concludes in its

independent judgment that the relevant

state-court decision applied clearly

established federal law erroneously or

incorrectly.” Williams v. Taylor, 529 U.S.

362, 411 (2000). Rather, that application

must be objectively unreasonable. Id. at 409;

Bell v. Cone, 535 U.S. 685, 699 (2002);

Woodford 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. Landrigan, 550 U.S. 465, 473

(2007) (“The question under AEDPA is not whether a federal

court believes the state court’s determination was incorrect

but whether that determination was unreasonable—a

substantially higher threshold.”).

Because the Supreme Court has never addressed a claim,

such as the one presently before us, concerning a restriction

on the scope of closing argument, the Washington Supreme
FROST V. VAN BOENING 33

Court’s determination that the error was not structural does

not require automatic reversal. See Richter, 131 S. Ct. at 786

(“[I]t is not an unreasonable application of clearly established

Federal law for a state court to decline to apply a specific

legal rule that has not been squarely established by this

Court.” (quoting Knowles v. Mirzayance, 556 U.S. 111, 122

(2009) (alteration in original))).

The Supreme Court’s decision in Herring did not

“establish a legal principle that clearly extends” to limitations

imposed on closing arguments, as opposed to the complete

denial of argument. Moses v. Payne, 555 F.3d 742, 754 (9th

Cir. 2009) (emphasis added). Indeed, the Washington

Supreme Court was able to “draw a principled distinction

between the case before it and Supreme Court case law,” and

we are bound under AEDPA to defer to the state court’s

reasoned opinion. Murdoch v. Castro, 609 F.3d 983, 991 (9th

Cir. 2010) (en banc); see also Van Patten, 552 U.S. at

124–26.

VI

The Washington Supreme Court properly concluded that

the trial court’s error was harmless. On habeas review, to

determine whether Frost is entitled to relief, our analysis is

focused on whether the trial court’s restriction on Frost’s

closing argument “had [a] substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (quotingKotteakos v.

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

Under this standard, Frost 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. Lane,
34 FROST V. VAN BOENING

474 U.S. 438, 449 (1986)). We should hold that, “[i]n light

of the record as a whole,” the trial court’s limitation on

defense counsel’s closing argument did not have a

“substantial and injurious effect or influence in determining

the jury’s verdict” for several reasons. Id. at 638 (internal

quotation marks omitted). That is what the Washington

Supreme Court ultimately, and correctly, decided. See Frost,

161 P.3d at 364.

First, the evidence of Frost’s guilt at trial was

overwhelming. Frost gave three taped confessions, all of

which were entered into evidence at trial. Further, Frost

testified in detail about his involvement in the crimes for

which he was charged as an accomplice, admitting that:

(1) he drove Williams to the Gapp residence on the night of

the robbery, that he entered the residence, and removed

money and guns from Gapp’s safe; (2) he drove the codefendants to the Taco Time restaurant, T and A video store,

the 7-Eleven convenience store, and Ronnie’s Market on the

night that each of those robberies took place; (3) he was

aware that Williams carried a bag containing such items as a

ski mask and gloves that were routinely used to commit the

crimes; and (4) he was aware of his co-defendant’s use of

firearms. Finally, Detective Broggi’s testimony regarding the

loaded guns, cash register, bank bags, safe, and ski masks that

were found at Frost’s home further corroborated Frost’s

active role in the crimes.

Second, Frost conceded guilt as to some of these crimes

when he testified in his own defense before the trial court

erroneously restricted Frost’s closing argument. During

opening statements, Frost’s counsel admitted that Frost

committed at least one of the robberies, stating, “You will

find from the evidence . . . that Joshua Frost is guilty of the
FROST V. VAN BOENING 35

robbery of [the elderly couple].” Consistent with his

counsel’s statements, Frost told the jury that he participated

in the charged crimes but claimed that he did so under duress.

Third, as to the remaining offenses, the state’s burden of

proof did not go untested because defense counsel was barred

from raising reasonable doubt as to accomplice liability. 

Although Frost’s counsel admitted during closing argument

that Frost was guilty of accomplice liability on certain counts,

he also argued that the state had failed to meet its burden of

proof on others. Specifically, Frost’s counsel argued:

I think you can find Joshua Frost guilty of the

Gapp robbery because that is just so

overpowering, and he did go into the house. 

I think you can find Joshua Frost guilty of the

T and A robbery not because he went in to do

the robbery but because he actually entered

the store. And the only reason I think you

could find him guilty of that is that it is kind

of just too much to ask for somebody who is

willing to take the step to let him off. And I

know that is what you are thinking, some of

you. But as to the cases in which he didn’t go

in anywhere and was just told to stay put, we

are asking you to find him not guilty, and

even if you find him guilty he is not guilty of

the guns. You can find him guilty of

displaying the gun as an accomplice, I

suppose, which is one of the things you have

to find to make a robbery in the first degree. 

But that doesn’t require you to find the special

verdict firearm allegation in addition. You

don’t have to do that. And we hope you
36 FROST V. VAN BOENING

don’t. And we think that the basis for not

doing that is that the guns were out of his

control.

Accordingly, as the district court acknowledged, “contrary to

Frost’s contention, the record shows defense counsel was able

to and did argue the state had failed to prove Frost was an

accomplice.”

Fourth, the jury was fully informed of the state’s burden

to prove each element of the crime beyond a reasonable

doubt, including accomplice liability. For example, the

prosecutor in closing argument stated:

Now I have divided my closing argument into

two different parts. The reason for that, ladies

and gentlemen, is there really are two parts in

some ways you look at this. The first part has

to do with the charges and the evidence and

has the state proven all of the elements and all

of the crimes beyond a reasonable doubt. And

then the second part has to do with the

defense of duress, and this is important

because the first part, again, the state has the

burden. To get to duress you really have to

find the state proves its case beyond a

reasonable doubt . . . .

Additionally, the jury in Frost’s trial was properly instructed

as to the state’s burden of proof by the judge prior to opening

statements, by the prosecution in closing, and in the formal

jury instructions read before the jury rendered its verdict.
FROST V. VAN BOENING 37

Finally, Frost voluntarily elected to concede his

involvement in the robberies when he decided to pursue the

inconsistent defense of duress. Under Washington law, a

defendant must admit that he “participated in the crime” in

order to argue duress. Wash. Rev. Code § 9A.16.060(1)(a). 

As the Washington Supreme Court explained, “a defense of

duress admits that the defendant committed the unlawful act,

but pleads an excuse for doing so . . . [and] a duress defense

necessarily allows for no doubt that the defendant did the acts

charged.” State v. Riker, 869 P.2d 43, 52 (Wash. 1994)

(emphasis in original).

Therefore, although the Washington Supreme Court

found that the trial court erred when it required Frost to

concede guilt or criminal liability, by electing to raise a

duress argument, Frost necessarily had to admit that he

committed the unlawful acts, and he consequently knew that

any argument he made regarding the state’s failure to prove

guilt was significantly weakened. Although the trial judge

indisputably erred in prohibiting defense counsel from

arguing innocence, the magnitude of that error is certainly

lessened by the fact that Frost voluntarily admitted his

involvement in each of the charged crimes by acknowledging

his commission of them under oath while pursuing a duress

defense.

Thus, in light of our review of the record, we should hold

that the trial court’s limitation on defense counsel’s closing

argument did not have a “substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht, 507 U.S.

at 637. There may be circumstances where a trial court’s

limitation on closing arguments may not survive the Brecht

harmless-error analysis. That is not the case here. 

Consequently, because Frost did not establish “actual
38 FROST V. VAN BOENING

prejudice,” we should conclude that he is not entitled to

habeas relief. Id.

VII

The Washington Supreme Court’s decision that the trial

court’s restriction on closing argument did not constitute

structural error was neither contrary to, nor an unreasonable

application of, clearly established federal law as determined

by the United States Supreme Court. In light of the Supreme

Court’s express instructions to exercise restraint in defining

clearly established federal law, to grant deference to state

courts under AEDPA, and to find structural error only in rare

instances, the Washington Supreme Court’s decision to apply

harmless-error analysis should have been respected.

The Washington Supreme Court properly concluded that

the trial court’s error was harmless. Reviewing the record as

a whole, the trial court’s restriction on Frost’s closing

argument did not have a “substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht, 507 U.S.

at 637. The record demonstrates that Frost was afforded the

opportunity to present his primary defense—duress—and the

state was not relieved of its burden to prove Frost guilty

beyond a reasonable doubt. Because the Washington

Supreme Court’s decision is neither contrary to nor an

unreasonable application of Supreme Court law as set forth

in Herring, Frost is not entitled to habeas relief.

I respectfully dissent.