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 clos-
ing arguments drew near, however, Frost’s lawyer ex-
pressed 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 prohib-
ited a defendant from simultaneously contesting the ele-
ments 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 con-
viction. 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 struc-
tural 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 Su-
preme 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 unrea-
sonably 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 struc-
tural 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] fun-
damentally unfair’ ”—requires automatic reversal. Ibid.
None of our cases clearly requires placing improper re-
striction of closing argument in this narrow category.
The Ninth Circuit claimed that the Washington Su-
preme Court contradicted Herring v. New York, 422 U. S.
853 (1975). Herring held that complete denial of summa-
tion 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 struc-
tural 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 char-
acterized 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 propo-
sition that “preventing a defendant from arguing a legiti-
mate defense theory constitutes structural error.” 757
F. 3d, at 916. As we have repeatedly emphasized, how-
ever, circuit precedent does not constitute “clearly estab-
lished 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
4 GLEBE v. FROST
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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 justifica-
tion for relying on those decisions. See Parker v. Mat-
thews, 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 rea-
soned 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 struc-
tural [errors].” Id., at 917–918.
No. The trial court, to begin, did not prohibit the de-
fense 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 theo-
ries 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 addi-
tion, 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 extrac-
tion 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 Ap-
peals 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 re-
spondent’s motion to proceed in forma pauperis. We re-
verse the judgment of the Court of Appeals for the Ninth
Circuit and remand the case for further proceedings con-
sistent with this opinion.
It is so ordered.