Cite as: 574 U. S. ____ (2014) 1 

Per Curiam 

SUPREME COURT OF THE UNITED STATES 

PATRICK GLEBE, SUPERINTENDENT, STAFFORD
 

CREEK CORRECTIONS CENTER v.
 

JOSHUA JAMES FROST 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
 

No. 14–95 Decided November 17, 2014

 PER CURIAM. 

Over 11 days in April 2003, respondent Joshua Frost 

helped two associates commit a series of armed robberies

in the State of Washington. In the main, Frost drove his 

confederates to and from their crimes. On one occasion, he 

also entered the house being robbed. On another, he 

performed surveillance in anticipation of the robbery. 

Washington charged Frost with robbery and related

offenses. Taking the witness stand, Frost admitted to his

involvement, but claimed he acted under duress. As closing arguments drew near, however, Frost’s lawyer expressed the desire to contend both (1) that the State failed

to meet its burden of proving that Frost was an accomplice

to the crimes and (2) that Frost acted under duress. The 

trial judge insisted that the defense choose between these

alternative arguments, explaining that state law prohibited a defendant from simultaneously contesting the elements of the crime and presenting the affirmative defense

of duress. So Frost’s lawyer limited his summation to 

duress. The jury convicted Frost of six counts of robbery, 

one count of attempted robbery, one count of burglary, and 

two counts of assault. 

The Washington Supreme Court sustained Frost’s conviction. It rejected the trial court’s view that state law 

prohibited Frost from simultaneously contesting criminal 

liability and arguing duress. State v. Frost, 160 Wash. 2d 

765, 773–776, 161 P. 3d 361, 366–368 (2007) (en banc). By 
 

 

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preventing the defense from presenting both theories 

during summation, it said, the trial court violated the

National Constitution’s Due Process and Assistance of 

Counsel Clauses. Id., at 777–779, 161 P. 3d, at 368–369. 

But the State Supreme Court continued, this improper

restriction of closing argument qualified as a trial error (a

mistake reviewable for harmlessness) rather than a structural error (a mistake that requires automatic reversal). 

Id., at 779–782, 161 P. 3d, at 369–370. Because the jury 

heard three taped confessions and Frost’s admission of 

guilt on the witness stand, and because it received proper 

instructions on the State’s burden of proof, the State

Supreme Court held that any error was harmless beyond a 

reasonable doubt. Id., at 782–783, 161 P. 3d, at 370–371. 

Frost filed a petition for writ of habeas corpus under 28 

U. S. C. §2254. The District Court dismissed the petition, 

App. to Pet. for Cert. 76a, and a panel of the Court of 

Appeals affirmed, Frost v. Van Boening, 692 F. 3d 924 

(CA9 2012). But the Court of Appeals en banc reversed 

and instructed the District Court to grant relief. 757 F. 3d 

910 (2014).

Under the Antiterrorism and Effective Death Penalty 

Act of 1996 (AEDPA), the Court of Appeals had power to

grant Frost habeas corpus only if the Washington Supreme Court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal 

law, as determined by the Supreme Court of the United

States,” or “was based on an unreasonable determination 

of the facts in light of the evidence presented in the State

court proceeding.” 28 U. S. C. §2254(d). Here, the Ninth 

Circuit held that the Washington Supreme Court unreasonably applied clearly established federal law by failing

to classify the trial court’s restriction of closing argument

as structural error. 

That decision cannot stand. Assuming for argument’s

sake that the trial court violated the Constitution, it was 
 

 

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not clearly established that its mistake ranked as structural error. Most constitutional mistakes call for reversal 

only if the government cannot demonstrate harmlessness. 

Neder v. United States, 527 U. S. 1, 8 (1999). Only the

rare type of error—in general, one that “‘infect[s] the 

entire trial process’” and “‘necessarily render[s] [it] fundamentally unfair’”—requires automatic reversal. Ibid. 

None of our cases clearly requires placing improper restriction of closing argument in this narrow category.

The Ninth Circuit claimed that the Washington Supreme Court contradicted Herring v. New York, 422 U. S. 

853 (1975). Herring held that complete denial of summation violates the Assistance of Counsel Clause. According

to the Ninth Circuit, Herring further held that this denial 

amounts to structural error. We need not opine on the 

accuracy of that interpretation. For even assuming that 

Herring established that complete denial of summation 

amounts to structural error, it did not clearly establish 

that the restriction of summation also amounts to structural error. A court could reasonably conclude, after all,

that prohibiting all argument differs from prohibiting 

argument in the alternative. That is all the more true 

because our structural-error cases “ha[ve] not been characterized by [an] ‘in for a penny, in for a pound’ approach.” 

Neder, supra, at 17, n. 2. 

Attempting to bridge the gap between Herring and this 

case, the Ninth Circuit cited two Circuit precedents— 

United States v. Miguel, 338 F. 3d 995 (CA9 2003), and 

Conde v. Henry, 198 F. 3d 734 (CA9 2000)—for the proposition that “preventing a defendant from arguing a legitimate defense theory constitutes structural error.” 757 

F. 3d, at 916. As we have repeatedly emphasized, however, circuit precedent does not constitute “clearly established Federal law, as determined by the Supreme Court.”

§2254(d)(1); see, e.g., Lopez v. Smith, 574 U. S. ___, ___ 

(2014) (per curiam) (slip op., at 6). The Ninth Circuit 
 

 

 

 

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acknowledged this rule, but tried to get past it by claiming

that circuit precedent could “‘help . . . determine what law 

is “clearly established.”’” 757 F. 3d, at 916, n. 1. But 

neither Miguel nor Conde arose under AEDPA, so neither 

purports to reflect the law clearly established by this 

Court’s holdings. The Ninth Circuit thus had no justification for relying on those decisions. See Parker v. Matthews, 567 U. S. ___, ___ (2012) (per curiam) (slip op., at 13).

The second rationale for the Court of Appeals’ decision 

is no more sound than the first. The Ninth Circuit reasoned that, by allowing the prosecution to argue that it 

had proved the elements of the crimes, but “prohibit[ing]” 

the defense from responding that it had not, the trial court 

in effect “forc[ed] defense counsel to concede his client’s 

guilt.” 757 F. 3d, at 917. By extracting this “conce[ssion],” 

the Ninth Circuit continued, the trial court “relieved the 

State of its burden of proving guilt beyond a reasonable 

doubt,” “shifted the burden of proof to Frost,” and even

“directed [a] verdict on guilt”—all “unquestionably structural [errors].” Id., at 917–918. 

No. The trial court, to begin, did not prohibit the defense from arguing that the prosecution failed to prove the

elements of the crime. It instead precluded the defense

from simultaneously contesting reasonable doubt and

claiming duress. Reasonable minds could disagree whether 

requiring the defense to choose between alternative theories amounts to requiring the defense to concede guilt. 

Still more could they disagree whether it amounts to

eliminating the prosecution’s burden of proof, shifting the

burden to the defendant, or directing a verdict. In addition, even if the trial court’s ruling somehow “forced” the

defense “at least tacitly [to] admit the elements of the 

crimes,” id., at 913, the Ninth Circuit still would have no 

basis for ruling as it did. It goes much too far to suggest

that our cases clearly establish that this supposed extraction of a “taci[t] admi[ssion]” is structural error, when they 
 

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classify the introduction of a coerced confession only as

trial error, Arizona v. Fulminante, 499 U. S. 279, 310 

(1991). 

* * * 

Frost argued below that, even if it was reasonable for 

the State Supreme Court to treat improper restriction of 

summation as trial error, it was unreasonable for it to find 

harmlessness on the facts of this case. The Court of Appeals did not address this argument when sitting en banc,

and it is not before us today. 

We grant the petition for a writ of certiorari and respondent’s motion to proceed in forma pauperis. We reverse the judgment of the Court of Appeals for the Ninth

Circuit and remand the case for further proceedings consistent with this opinion. 

It is so ordered.