Joshua Frost v. Ron Van Boening

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSHUA JAMES FROST, No. 11-35114
Petitioner-Appellant,
D.C. No.
v. 2:09-cv-00725-
TSZ
RON VAN BOENING, Superintendent,
Respondent-Appellee. 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 non-
structural 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. Gonzalez-
Lopez, 548 U.S. 140, 148 (2006) (quoting Fulminante,
499 U.S. at 307–08).

In contrast, structural errors “defy analysis by harmless-
error 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
from arguing a legitimate defense theory constitutes 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 failure-
of-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 oft-
repeated 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 of Herring 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 clearly established 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 improperly excludes 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
arguments supporting 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 WL 5775657, at
*8 (W.D. Wash. Oct. 5, 2010) (adopted by Frost v. Van
Boening, No. C09-725Z, 2011 WL 486198 (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 clearly established 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. Metro-
Goldwyn-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
impermissibly and unconstitutionally tried to the jury with 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) (quoting Kotteakos 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 co-
defendants 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.