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
MARGARET GILBERT,
Superintendent,* OPINION
Respondent-Appellee.

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 March 21, 2016

Before: Sidney R. Thomas, Chief Judge, and Stephen
Reinhardt, Alex Kozinski, 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 Kozinski;
Partial Concurrence and Partial Dissent by Judge Tallman

*
We substitute Superintendent Margaret Gilbert for Patrick Glebe as
the respondent-appellee on our own motion. See Fed. R. App. P. 43(c)(2).
2 FROST V. GILBERT

SUMMARY**

Habeas Corpus

On remand from the Supreme Court, the en banc court
affirmed the district court’s denial of habeas corpus relief to
Washington state prisoner Joshua Frost, who challenges his
conviction on charges stemming from his participation in a
spree of armed robberies and a burglary.

The en banc court held that the King County Superior
Court’s erroneous refusal to allow defense counsel to make
alternative arguments during summation – that the state
hadn’t met its burden of proof, and that Frost committed the
crimes under duress – was harmless because the jury heard
overwhelming evidence that Frost committed the charged
offenses and any argument that the prosecution failed to meet
its burden of proof would have fallen on deaf ears.

The en banc court granted a certificate of appealability as
to Frost’s claims that the prosecution withheld material,
exculpatory evidence in violation of Brady v. Maryland and
that the prosecution called witness Edward Shaw to testify
falsely about the existence of that evidence in violation of
Napue v. Illinois.

The en banc court held that Frost demonstrated cause for
failing to raise the Brady and Napue claims in his 2008
personal restraint petition. But the en banc court held that
Frost cannot show prejudice. The en banc court explained

**
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. GILBERT 3

that given the evidence of guilt presented at trial, there is no
reasonable likelihood that Shaw’s false testimony about
having only one plea agreement could have affected the
judgment of the jury, and there is no reasonable likelihood
that the jury could have acquitted Frost based on his duress
defense, even if they had learned of an undisclosed signed
version of Shaw’s plea agreement in a firearm-and-drug
possession case or an undisclosed plea agreement in Shaw’s
domestic-violence case.

In Section II C (in which Judge Nguyen did not join),
Judge Kozinski wrote that he and the four joining judges
found the facts giving rise to the Brady and Napue claims
most troubling. He wrote that there is cause to believe that
the King County Prosecuting Attorney’s Office violated
Brady and Napue by willfully withholding evidence of
Shaw’s domestic-violence plea deal and by permitting Shaw
to lie on the stand, and that subsequent to the trial, the office
stonewalled in providing Frost this information when he
doggedly requested it.

Judge Tallman, joined by Judges Rawlinson, Bybee,
Callahan, and M. Smith, concurred in part, dissented in part,
and concurred in the judgment denying habeas relief. Judge
Tallman wrote that the majority’s decision to reverse the en
banc court’s prior decision declining to certify Frost’s
remaining claims for appeal, only to deny his meritless Brady
and Napue claims, exceeds the Supreme Court’s remand
instructions and is a blatant disregard of binding Supreme
Court precedent enforcing procedural bars and a lamentable
waste of precious judicial resources. He wrote that Section
II C, which is not the judgment of this court, launches a
groundless, personal attack against several King County
4 FROST V. GILBERT

employees who have no way to defend themselves from the
defamation.

COUNSEL

Erik B. Levin (argued), Law Office of Erik Levin, Berkeley,
California, for Petitioner-Appellant.

John Joseph Samson (argued), Assistant Attorney General,
Corrections Division; Robert W. Ferguson, Attorney General,
Olympia, Washington, for Respondent-Appellee.

David M. Porter, Co-Chair, NACDL Amicus Committee,
Sacramento, California; Jon M. Sands, Federal Public
Defender and Keith J. Hilzendeger, Assistant Federal Public
Defender, Phoenix, Arizona, for Amici Curiae Ninth Circuit
Federal Public and Community Defenders and National
Association of Criminal Defense Lawyers.
 FROST V. GILBERT 5

OPINION

KOZINSKI, Circuit Judge:

In 2003, Joshua Frost was charged in state court with
participating in an eleven-day spree of armed robberies and
a burglary. Frost’s attorney wanted to argue during
summation that the state hadn’t met its burden of proof and,
in the alternative, that Frost committed the crimes under
duress. The King County Superior Court erroneously refused
to allow counsel to make these alternative arguments, so he
chose to argue duress. The Washington Supreme Court held
that the superior court’s error was harmless. State v. Frost,
161 P.3d 361, 370–71 (Wash. 2007) (en banc). In a previous
en banc opinion, we held that the restriction on Frost’s
closing argument was structural error. Frost v. Van Boening,
757 F.3d 910, 918–19 (9th Cir. 2014) (en banc). The
Supreme Court reversed. Glebe v. Frost, 135 S. Ct. 429, 432
(2014) (per curiam). We must now decide whether Frost is
nevertheless entitled to habeas relief because the error,
though not structural, was prejudicial. In addition, we
consider Brady and Napue issues that the district court did not
certify for appeal.

DISCUSSION

I. The Harmless Error Issue

Our review of the Washington Supreme Court’s harmless-
error decision is governed by the Antiterrorism and Effective
Death Penalty Act. See 28 U.S.C. § 2254(d)(1) (requiring
petitioners to demonstrate that a state court’s decision on the
merits is “contrary to, or involved an unreasonable
application of, clearly established [f]ederal law” to obtain
6 FROST V. GILBERT

habeas relief). We may reverse the state supreme court’s
harmlessness determination only if Frost experienced “actual
prejudice,” that is, where we have “grave doubt about
whether a trial error of federal law had ‘substantial and
injurious effect or influence in determining the jury’s
verdict.’” See Davis v. Ayala, 135 S. Ct. 2187, 2197–98
(2015) (quoting O’Neal v. McAninch, 513 U.S. 432, 436
(1995) and Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)); see also id. at 2198–99 (explaining that the Brecht
standard “subsumes” the requirements of AEDPA, which
“sets forth a precondition to the grant of habeas relief”
(quoting Fry v. Pliler, 551 U.S. 112, 119–20 (2007))).
Specifically, the inquiry is whether, in light of the record as
a whole, the improper limitation on defense counsel’s closing
argument substantially influenced the verdict. Brecht,
507 U.S. at 638–39.

The jury heard overwhelming evidence that Frost
committed the charged offenses. The prosecution introduced
Frost’s recorded confessions, and he testified that he
participated in the robberies and the burglary. The
prosecution also linked evidence found in Frost’s home to the
crimes. On this record, any argument that the prosecution
failed to meet its burden of proof would have fallen on deaf
ears. Accordingly, Frost wasn’t prejudiced by the superior
court’s error in denying him the right to make that argument.
See Brecht, 507 U.S. at 637–38; see also Davis, 135 S. Ct. at
2199.

II. The Brady and Napue Issues

Frost maintains that the prosecution withheld material,
exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83, 87 (1963). He claims that the evidence would
 FROST V. GILBERT 7

have undermined the testimony of Edward Shaw, a key
prosecution witness. He also argues that the prosecution
called Shaw to testify falsely about the existence of that
exculpatory evidence in violation of Napue v. Illinois,
360 U.S. 264, 269–70 (1959).

Shaw wasn’t involved in the robberies and burglary at the
heart of the prosecution’s case. Rather, he was an
acquaintance who testified about how Frost interacted with
ringleader Matthew Williams, who Frost claimed coerced him
into participating in the crimes. In April 2003, Shaw met
with detectives to discuss what he knew about Frost’s
involvement. At that time, Shaw had pending charges for
unlawful possession of drugs and a firearm. Shaw asked for
favorable treatment in exchange for information about Frost’s
criminal activity but the prosecution refused to make a deal.
Nevertheless, Shaw disclosed what he knew. Frost was
arrested the same day. State v. Frost, 161 P.3d at 364.

Subsequently, but before Frost’s trial, Shaw was charged
with second-degree assault with a deadly weapon growing out
of a domestic-violence incident. In November 2003, a few
weeks before Frost’s trial, Shaw signed two plea agreements.
He received a nine-month sentence for all his crimes,
conditioned on his testifying truthfully against Frost.

At trial, Shaw testified that Frost was “giggling” when
Shaw asked whether he was involved in the robberies and
burglary. The prosecution highlighted this testimony in its
closing: “When Mr. Shaw talked to the defendant about his
involvement in these robberies, the defendant was giggling.
Does that sound like duress?”
8 FROST V. GILBERT

Shaw also testified about the plea agreement for his
unlawful-possession case. The prosecution introduced an
unsigned version of that agreement. Shaw testified that the
signed version was the same as the one the state presented at
trial. Shaw didn’t mention that he signed a separate
agreement resolving his domestic-violence charges, which
provided that the sentence for that offense would run
concurrently with that for unlawful possession. The
prosecution did not disclose the existence of Shaw’s
domestic-violence plea agreement or otherwise correct his
testimony.

Nor was the signed version of Shaw’s unlawful-
possession plea agreement identical to the unsigned version;
it contained a handwritten reference to his domestic-violence
case number. The prosecution didn’t produce the annotated
version of the unlawful-possession plea agreement or the
domestic-violence plea agreement. Rather, the prosecution
waited until two days after Frost was convicted to file both
plea agreements in Shaw’s state-court cases. The state
doesn’t dispute that the prosecution was required by Brady to
turn over both plea agreements before Frost’s trial.

In March 2008, shortly after exhausting his direct appeal,
Frost sent a letter requesting “any documentation that could
be used to establish the credibility and or expierance [sic] Mr.
Shaw has or had as a Police Informant.” The public records
officer responded by identifying several docket numbers
involving Shaw, including his domestic-violence case. The
records officer estimated that there were “1000 pages of
documents” responsive to Frost’s request, which would cost
$195.00 to copy and ship. In his reply, Frost explained that
he wasn’t “looking for complete case files, as that would be
quite expensive.” Rather, he sought “any documents” that
 FROST V. GILBERT 9

could show “any special treatment [Shaw] was given in
regards to . . . cooperation with [the prosecuting attorney’s]
office or the King County Police Department.” The records
officer responded that she did not “find any records
responsive to [Frost’s] request.”

Frost persisted: He wrote back that he knew Shaw had
given statements in a particular case, which he identified by
number. He asked the records officer to “please try and comb
through the above-mentioned case files” for Shaw’s
statements and “please send [Frost] a list of any and all King
County Police Case Numbers brought up in those files.” The
records officer responded by identifying two docket
numbers—neither of which was the domestic-violence
case—and informing Frost that she found a statement that
Shaw made in the unlawful-possession case file. No
documents were provided pertaining to the domestic-violence
case. Frost filed a personal restraint petition shortly
afterward in which he raised a number of claims for relief, but
didn’t allege any Brady or Napue violations.

The undisclosed plea agreements first came to light in
2009 when the Federal Public Defender for the Western
District of Washington, appointed by the district court to
represent Frost in his federal habeas proceeding, searched
Shaw’s records at the King County Superior Court Clerk’s
Office. Counsel quickly filed another personal restraint
petition based on this evidence, but the Washington Supreme
Court denied it as untimely. The federal magistrate judge
found that the supreme court relied on a valid procedural rule
in dismissing Frost’s Brady and Napue claims and that Frost
hadn’t shown cause to overcome this default.
10 FROST V. GILBERT

In objecting to the magistrate judge’s report and
recommendation, Frost argued that the prosecution’s
continued failure to disclose the domestic-violence plea
agreement frustrated his ability to raise timely Brady and
Napue claims. He presented his 2008 communications with
the King County Prosecuting Attorney’s Office.
Accordingly, he asserted that he had cause for his procedural
default.

The district judge adopted the magistrate judge’s report
and recommendation in full. He concluded that Frost’s
evidence didn’t demonstrate that the prosecuting attorney’s
office engaged in “persistent efforts to suppress”
impeachment evidence. The district judge also found that
Shaw’s testimony wasn’t pivotal in light of the prosecution’s
ample evidence establishing Frost’s involvement in the
charged crimes. The district judge declined to grant
certificates of appealability on Frost’s Brady and Napue
claims.

A.

The standard for granting a certificate of appealability is
low. Shoemaker v. Taylor, 730 F.3d 778, 790 (9th Cir. 2013)
(as amended). All that’s required is that “reasonable jurists
could debate” whether the petition states a “valid claim of the
denial of a constitutional right” and whether the district court
“was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). As explained below, these issues
are at least debatable and implicate Frost’s constitutional
rights. Accordingly, Frost has met the standard for granting
a certificate of appealability, and we do so here.
 FROST V. GILBERT 11

B.

Because the Washington Supreme Court held that Frost
defaulted on his Brady and Napue claims, he must overcome
the default by showing cause and prejudice. See Strickler v.
Greene, 527 U.S. 263, 282 (1999).

Cause. Frost started researching his Brady and Napue
claims well before the deadline for filing a personal restraint
petition had passed. The Supreme Court denied Frost’s
petition for certiorari on January 14, 2008, see Frost v.
Washington, 552 U.S. 1145 (Jan. 14, 2008), so he had until
January 14, 2009 to seek relief through collateral review. See
Wash. Rev. Code § 10.73.090(2), (3)(c) (2008). Frost made
his first inquiry to the King County Prosecuting Attorney’s
Office about documents that would call Shaw’s credibility
into question in March 2008. The dissent faults Frost for not
promptly discovering all the documents he was looking for,
noting that his federal habeas counsel was able to do so later
with ease. Diss. at 28. But federal habeas counsel reviewed
Shaw’s felony files at the King County Superior Court
Clerk’s Office. Unlike his federal habeas counsel, Frost was
incarcerated, and so had to write to the prosecuting attorney’s
office to request information. Had the prosecuting attorney’s
office—which was guilty of hiding the information in the first
place—responded accurately to Frost’s document requests, he
could have filed a timely petition.

Frost first asked for “any documents . . . that could be
used to establish the credibility . . . Mr. Shaw has or had as a
Police Informant.” The records officer represented that she
could provide complete case files for $195 or that Frost could
narrow his search. It is hardly fair for the dissent to fault
Frost for “declining” to buy the entire case files, Diss. at 31,
12 FROST V. GILBERT

as $195 is a tremendous amount for an indigent prison
inmate. Frost reasonably chose the second option (narrowing
the search) by asking for “any documents . . . in regards to
any special treatment [Shaw] was given in regards to . . .
cooperation with your office or the King County Police
Department.” Rather than disclosing either of Shaw’s plea
agreements, the officer responded that she did “not find any
records responsive to [Frost’s] request.” When Frost
rephrased his query as for “information . . . that would show
[Shaw’s] reliability,” the records officer again failed to turn
anything over. The dissent analyzes the same correspondence
between Frost and the King County Prosecuting Attorney’s
Office but ignores how the public records department’s false
answers misled Frost about the contents of the files in its
possession and thus prevented Frost from obtaining evidence
to support his claims. Diss. at 30–32.

The dissent criticizes Frost for abandoning his pursuit of
impeachment evidence, Diss. at 31, but he diligently asked
for this information on multiple occasions. He was
reasonable in abandoning his investigation after the
prosecution falsely advised him on repeated occasions that it
had no information supporting his Brady and Napue claims.

That Shaw’s plea agreements were not filed until two
days after Frost was convicted, even though they had been
signed weeks earlier, seems like more than carelessness on
the prosecution’s part. And its later failure to disgorge
Shaw’s plea agreements, despite Frost’s repeated requests,
may amount to “interference by officials” that supplies cause
to excuse Frost’s procedural default. Murray v. Carrier,
477 U.S. 478, 488 (1986) (quoting Brown v. Allen, 344 U.S.
443, 486 (1953)). At the least, it shows “some objective
factor external to the defense” that prevented Frost from
 FROST V. GILBERT 13

complying with Washington’s rule setting time limits for
bringing personal restraint petitions. Id.; accord Amadeo v.
Zant, 486 U.S. 214, 222 (1988).

Frost filed a personal restraint petition in 2008 raising
multiple claims for relief. No doubt, he would have presented
allegations of Brady and Napue violations in that petition, had
he been aware of the facts supporting those arguments.
“[T]he reason for [Frost’s] failure to develop facts in [s]tate-
court proceedings was the [s]tate’s suppression of the relevant
evidence.” Banks v. Dretke, 540 U.S. 668, 691 (2004) (citing
Strickler, 527 U.S. at 282). Accordingly, Frost has
demonstrated cause for failing to raise his Brady and Napue
claims in his 2008 personal restraint petition. See, e.g.,
Amadeo, 486 U.S. at 222 (finding “ample cause to excuse [a
petitioner’s] procedural default” where county officials
concealed a key document and counsel had no tactical reason
for failing to raise the claim); Crawford v. Head, 311 F.3d
1288, 1327 (11th Cir. 2002) (petitioner demonstrated cause
where state failed to disclose Brady material in its possession
despite multiple requests from counsel); Crivens v. Roth,
172 F.3d 991, 995 (7th Cir. 1999) (petitioner had cause to
overcome procedural default of Brady claim where
prosecution didn’t provide the criminal record of its witness
until after the habeas petition was filed).

Prejudice. While Frost has shown cause, he cannot show
prejudice. Given the evidence of guilt presented at trial, there
is no “reasonable likelihood” that Shaw’s false testimony
about only having one plea agreement could have “affected
the judgment of the jury.” Sivak v. Hardison, 658 F.3d 898,
912, 914 (9th Cir. 2011) (quoting Jackson v. Brown, 513 F.3d
1057, 1076 (9th Cir. 2008)) (finding no prejudice at trial from
a Napue violation where the defendant’s own testimony and
14 FROST V. GILBERT

physical evidence “pointed to his guilt”). Had the jury
learned of Shaw’s second plea agreement, there is no
“reasonable probability” that the outcome would have been
different. See Strickler, 527 U.S. at 296.

Shaw’s undisclosed domestic-violence offense carried a
maximum sentence of five years—the same as his unlawful-
possession offenses. It is unlikely that the prosecution could
have put pressure on Shaw to change his testimony by
threatening to seek consecutive sentences for his offenses. In
Washington, there is a presumption that sentences imposed at
the same time will be served concurrently. Wash. Rev. Code
§ 9.94A.589(1)(a); State v. Vance, 230 P.3d 1055, 1058–59
(Wash. 2010) (en banc). Nothing in the record suggests that
the state could have overcome this presumption. Neither of
Shaw’s crimes were “serious violent offenses.” Wash. Rev.
Code § 9.94A.030(37) (2002) (defining “serious violent
offense”); id. § 9.94A.589(1)(b) (requiring consecutive
sentences for defendants who’ve committed two or more
serious violent offenses). Nor is there evidence of any other
factor that Washington courts normally rely on in justifying
consecutive sentences, such as the use of a “high degree of
sophistication or planning,” or an abuse of a “position of
trust.” See id. § 9.94A.535(2)(e)(v)–(vi).

While Frost could have shown that Shaw was a bad guy
because he not only unlawfully possessed a firearm and drugs
but also assaulted his girlfriend, it wouldn’t have gotten him
far. The jury already knew that Shaw received benefits in
exchange for his testimony. The jury also heard that Shaw
gave information about Frost’s crimes to the police even after
they declined a deal on his pending unlawful-possession
charges. And the jury was aware that Shaw approached
 FROST V. GILBERT 15

authorities with information about Frost in April, well before
he committed the assault in August.

Any impact of this impeachment evidence would have
been vitiated by Frost’s own testimony, which cast doubt on
his duress defense. Frost didn’t have a good answer for why
he didn’t attempt to escape from Williams when he had a
chance. He admitted that he was left alone in the car when
his accomplices committed one of the robberies. Frost also
admitted that he picked up Williams on several occasions, as
Williams didn’t have a car. Frost acknowledged that he never
tried to get his mother and brother to a safe place in response
to Williams’s alleged threats against them. Nor did he call
911, although he’d previously done so when he felt
threatened by others. Finally, Frost admitted that, during his
first interview with the police, he didn’t say that he had been
threatened by Williams, even though the officer twice urged
him to say “anything” he wanted. There’s no reasonable
likelihood that the jury could have acquitted Frost based on
his duress defense, even if they had learned of the
undisclosed plea agreements.

C.***

Although we conclude that Frost is not entitled to relief,
we find the facts giving rise to his Brady and Napue claims
most troubling. As the matter has been presented to us, there
is cause to believe that the King County Prosecuting
Attorney’s office violated Brady and Napue by willfully
withholding evidence of Shaw’s domestic-violence plea deal
and by permitting Shaw to lie on the stand. That this was a
deliberate tactic rather than an oversight is demonstrated by

***
Judge Nguyen does not join this section of the opinion.
16 FROST V. GILBERT

the fact that the prosecution kept Shaw’s signed plea
agreements secret until two days after Frost was convicted,
even though they had been signed well before Frost’s trial
commenced and thus should have been turned over to the
defense at once. Moreover, subsequent to the trial, the office
stonewalled in providing Frost this information when he
doggedly requested it.

So far as we are aware, the individuals involved have
never been held to account for their conduct. As the dissent
acknowledges, the deputy prosecuting attorney in Frost’s
case, Zachary Wagnild, introduced into evidence an unsigned
plea agreement that he suffered the witness to testify was
identical to the signed version. Diss. at 23. The difference
between the two documents was material, as the signed
version revealed the existence of the second plea deal. The
dissent chalks this all up to a case of “the left hand [not
knowing] what the right hand was doing” in a busy office
with multiple prosecuting attorneys. Diss. at 34–35. But it’s
more akin to one hand washing the other. We know that
Wagnild was aware of the domestic-violence case because he
signed the plea agreement in the unlawful-possession case,
which referred to Shaw pleading guilty in his domestic-
violence case. The unlawful-possession agreement was dated
November 26, 2003—before Frost’s trial. There was thus no
reason to use an unsigned version where the signed version
was available and had, in fact, passed through Wagnild’s
hands. Yet Wagnild did not produce the signed plea
agreement as required by Brady, and he failed to correct
Shaw’s representation that the two versions were identical
(but for the signature). Having himself signed the original, he
was charged with knowledge of its contents; he certainly
knew how to get the original to confirm that the documents
were indeed identical. Allowing a prosecution witness to
 FROST V. GILBERT 17

testify falsely when the truth is easily verifiable not only
violates Napue but would also amount to professional
misconduct.

We are also troubled by the conduct of Gary Ernsdorff,
the deputy prosecuting attorney who handled Shaw’s
domestic-violence case. Shaw’s plea agreement in the
domestic-violence case referenced his unlawful-possession
plea agreement, which obligated him to testify truthfully in
Frost’s case. It is possible, though unlikely, that filing the
plea agreement in Shaw’s domestic-violence case two days
after the jury returned its verdict in Frost’s case was mere
coincidence. But filing it on the same day as the unlawful-
possession plea agreement bespeaks coordination and
planning. The domestic-violence plea agreement had been
signed on November 3, a month before Frost’s trial even
began, but it was kept secret until it was too late for Frost to
use it in his defense. The state has offered no explanation for
delaying the filing of both plea agreements until after the jury
returned its verdict in Frost’s case. The dissent sees this all
as innocent carelessness, but to us it’s at least one
coincidence too far. The sequence of events raises the
inference that Ernsdorff collaborated with Wagnild to conceal
the agreement from Frost until Wagnild had secured a guilty
verdict. If so, this would be shameful misconduct on the part
of both prosecuting attorneys, which not even the dissent
denies.

Finally, we are concerned by the actions of Kelli
Williams, the public records officer for the King County
Prosecuting Attorney’s office at the time Frost sought
information about Shaw. Frost asked that office, in every
way he knew how, for the information that would have
supported his Brady and Napue claims. Yet Williams
18 FROST V. GILBERT

provided incorrect or misleading information in response to
his requests. Her failure to identify and disclose either plea
agreement to Frost may be the result of incompetence or
indolence, but it may also reflect a deliberate effort to prevent
disclosure of the deception committed by her office.

Although the Washington courts presumably have been
aware of these facts for some time, we have been apprised of
no sanctions against these individuals, nor any inquiry
conducted by the courts. Nor have we heard of any effort to
hold Shaw accountable for the perjury he almost certainly
committed in his testimony in Frost’s case or to determine the
degree to which he may have been aided in that endeavor by
prosecuting attorney Wagnild.

We are mindful that there may be circumstances of which
we are unaware that cast the matter in a different light. Yet,
unlike the dissent, we do not believe this is a sufficient reason
to keep silent. The individuals we have named may wish to
furnish a copy of this opinion to the state bar and seek to clear
their names by providing an explanation for its consideration.
This would seem to be the prudent course.

* * *

Because Frost can’t show prejudice as a result of the
errors committed at his trial, he is entitled to no relief in
federal court.

AFFIRMED.
 FROST V. GILBERT 19

TALLMAN, Circuit Judge, joined by RAWLINSON,
BYBEE, CALLAHAN, M. SMITH, Circuit Judges,
concurring in part, dissenting in part, and concurring in the
judgment denying habeas relief:

Part II of today’s opinion is an imprudent exercise of
Article III judicial power. It is all the more so because the
Supreme Court reversed our previous en banc decision in
Frost’s case and held that the trial court’s restriction on
Frost’s closing argument was not structural error as we had
declared. Glebe v. Frost (Frost IV), 135 S. Ct. 429, 431–32
(2014) (per curiam). The Supreme Court remanded the case,
directing us to conduct a harmlessness analysis. See id. at
432 (“The Court of Appeals did not address [whether the state
court was unreasonable to find harmlessness] when sitting en
banc, and it is not before us today. . . . We reverse the
judgment of the Court of Appeals for the Ninth Circuit and
remand the case for further proceedings consistent with this
opinion.”). In Part I, we now all agree that the trial court’s
error did not have a “substantial and injurious effect or
influence in determining the jury’s verdict” in light of the
overwhelming evidence of Frost’s guilt for the numerous
crimes he committed in his eleven-day crime spree. Davis v.
Ayala, 135 S. Ct. 2187, 2198 (2015) (quoting O’Neal v.
McAninch, 513 U.S. 432, 436 (1995)); see Maj. Op. at 5–6.

That should have been the end of the matter. The
mandate should have issued promptly after affirming the
district court’s denial of Frost’s petition for habeas corpus.
Yet, Part II exceeds the Supreme Court’s remand instructions
and now resurrects Frost’s procedurally defaulted Brady and
Napue claims when three courts, including this same en banc
panel, previously declined to certify Frost’s remaining claims
for appeal. See Frost v. Van Boening (Frost I), No.
20 FROST V. GILBERT

C09–725Z, 2011 WL 486198, at *1–2 (W.D. Wa. Feb. 4,
2011) (denying a certificate of appealability as to claims 1, 2,
and 4 of Frost’s amended habeas petition); Frost v. Van
Boening (Frost II), 692 F.3d 924, 927 n.3 (9th Cir. 2012),
superseded on reh’g en banc, 757 F.3d 910 (9th Cir. 2014)
(“Having considered Frost’s arguments, we are satisfied that
none of his other claims meet [the standard to obtain a
certificate of appealability].”); Frost III, 757 F.3d 910, 919
(9th Cir. 2014) (en banc) (“[We] decline to expand the
certificate of appealability.”).

All eleven judges on this en banc panel previously
considered Frost’s procedurally defaulted claims. We could
not have been more clear in our previous en banc decision.
Frost III, 757 F.3d at 919. Frost did not file his own petition
for certiorari challenging this ruling, and the Supreme Court
did not grant certiorari on this issue. Our decision not to
expand the certificate of appealability to consider Frost’s
procedurally defaulted claims is now the “law of the case,”
and the majority errs by “reconsider[ing] an issue that has
already been decided by the same court or a higher court in
the same case.” Gonzalez v. Arizona, 677 F.3d 383, 390 n.4
(9th Cir. 2012), aff’d sub nom. Arizona v. Inter Tribal
Council of Arizona, Inc., 133 S. Ct. 2247 (2013). The
majority’s untimely and injudicious attempt to rewrite history
to now consider Frost’s Brady and Napue claims greatly
“compromise[s] the orderly, decorous, rational traditions that
[we] rely upon to ensure the integrity of [our] own
judgments.” Hollingsworth v. Perry, 558 U.S. 183, 197
(2010).

By my count, this is Frost’s fifth effort to collaterally
attack what we all agree is a valid conviction for crimes
committed in April 2003. This latest sua sponte “endless
 FROST V. GILBERT 21

repetition of inquiry” into the facts surrounding Frost’s
conviction disrupts congressional intent in enacting the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) to conserve judicial resources, avoid piecemeal
litigation, and eliminate delays in the federal habeas review
process. See McCleskey v. Zant, 499 U.S. 467, 492 (1991);
Gonzalez v. Thaler, 132 S. Ct. 641, 650 (2012) (“Congress’s
intent in AEDPA [was] ‘to eliminate delays in the federal
habeas review process.’”) (quoting Holland v. Florida,
560 U.S. 631, 648 (2010)).

Section II C of Judge Kozinski’s opinion—for which
there is no majority—launches a groundless, personal attack
against several King County employees who have no way to
defend themselves from the defamation. Judge Kozinski’s
quiver is full, and Section II C of his “opinion” loosens
several arrows directed at the King County Prosecutor’s
Office and the Sheriff’s Department. The attack in Section II
C is mounted notwithstanding the ultimate conclusion that
Frost still loses because he cannot establish prejudice from
the revived constitutional violations. Article III of the United
States Constitution is not a roving commission permitting
federal judges to use their opinions as a platform to launch
such ad hominem attacks. Section II C of Judge Kozinski’s
opinion is not the judgment of this court.

I

The crux of Frost’s Brady and Napue claims is that the
prosecutor knowingly elicited false testimony and suppressed
impeachment evidence relating to a trial witness, Edward
Shaw. Prior to Frost’s arrest, Shaw had learned about Frost’s
involvement in the robberies and reported this knowledge to
law enforcement. At the time of his meeting with law
22 FROST V. GILBERT

enforcement, Shaw had been charged with: (1) unlawful
possession of a firearm in the first degree and (2) possession
for sale of a controlled substance (the “gun and drugs” case).
Shaw asked the State for leniency on these two charges in
exchange for information about Frost, but the State refused to
make a deal. Shaw, nonetheless, told sheriff’s detectives
what he knew about Frost’s criminal activities. Frost was
arrested, incriminating evidence was seized, and he confessed
(three times).

Shaw was subsequently charged with a third crime,
second-degree assault with a deadly weapon stemming from
a domestic violence incident (the “domestic violence” case).
Before Frost’s trial, Shaw entered into a plea agreement in the
gun and drugs case. After trial, Shaw also pled to the
domestic violence charge. The state agreed to reduce Shaw’s
charges in the gun and drugs case in exchange for his
testimony at Frost’s trial. In the space marked “Other” on
Shaw’s gun and drugs plea agreement, dated November 3,
2003, the following was handwritten: “Testify truthfully in
State v. Frost . . . as set forth in agreement. Plead guilty to
03-1-02187-0 (domestic violence assault case).” Shaw’s plea
agreement in the domestic violence case, also dated
November 3, 2003, provides: “This plea is part of a two-case
offer.” The State also recommended that Shaw’s nine-month
sentence in the domestic violence case be imposed
concurrently with the sentence imposed on the gun and drugs
charges.

At Frost’s trial, Shaw testified about a conversation he
had with Frost the night before Frost’s arrest. In this
particular conversation, Shaw asked Frost whether he had
committed the recent robberies in the area. Shaw testified
that Frost “started giggling” in response. Shaw further
 FROST V. GILBERT 23

testified that he was motivated to contact the police after this
conversation “[b]ecause what they were doing was not right.
They beat old people, and after somebody gives them what
they want they would shoot them. That is not right by me.”
In addition, the prosecution introduced an unsigned version
of the prosecution’s plea offer letter in the gun and drugs
case, which did not reference Shaw’s domestic violence case.
Shaw did not mention his domestic violence agreement at
trial and also testified that the unsigned letter was identical to
the offer letter that he had signed. Therefore, the details of
Shaw’s domestic violence agreement were never disclosed to
Frost at trial. It was not until two days after Frost’s
conviction that Shaw’s plea agreement and the prosecutor’s
sentencing recommendation in both the gun and drugs case
and the domestic violence case were finalized on December
18, 2003. On that day, Shaw pled guilty and the fully signed
plea agreements were filed in open court before a superior
court judge different from the judge presiding over Shaw’s
criminal cases.

On May 26, 2009, after two unsuccessful rounds of
collateral state habeas litigation (called “personal restraint
petitions” in Washington), Frost raised his Brady and Napue
claims for the first time. Then Frost got new lawyers, federal
public defenders in place of state criminal counsel. Frost’s
third personal restraint petition was filed in state court after
his investigator at the Federal Public Defender’s Office
reviewed Shaw’s criminal history and discovered the
undisclosed plea agreement in the domestic violence case.
Frost argued that the State knowingly elicited the false
testimony of Shaw at trial and that the suppression of Shaw’s
domestic violence plea agreement precluded him from
impeaching Shaw’s credibility. The Washington State
Supreme Court dismissed Frost’s five-year-old claims as time
24 FROST V. GILBERT

barred under Wash. Rev. Code § 10.73.090, Washington’s
one-year time limit for petitioning for a “collateral attack on
a judgment and sentence in a criminal case.” It held that
Frost failed to meet the exception for “newly discovered
evidence” because he had not acted with “reasonable
diligence” in discovering the impeaching evidence, which had
been publicly available since December 18, 2003.

On February 26, 2010, Frost filed an amended federal
habeas petition and raised a number of grounds for relief,
including for the first time here that he was denied due
process under the Fourteenth Amendment when the State
knowingly withheld material exculpatory evidence and that
his Sixth and Fourteenth Amendment rights were violated
when the State knowingly elicited the false testimony of
Shaw. On October 5, 2010, United States Magistrate Judge
Brian A. Tsuchida issued a Report and Recommendation,
which recommended that the district court deny Frost’s
amended habeas petition. The Report and Recommendation
concluded that Frost’s Brady and Napue claims were
procedurally defaulted and should be dismissed for that
reason.

On February 4, 2011, United States District Judge
Thomas S. Zilly adopted the Report and Recommendation
and dismissed the habeas petition with prejudice. In addition,
the district court denied a certificate of appealability as to
Frost’s Brady and Napue claims. Frost I, 2011 WL 486198
at *1–2. Likewise, our prior three judge panel and this en
banc court denied Frost’s request that we expand the
certificate of appealability to address these issues. Frost II,
692 F.3d at 927 n.3; Frost III, 757 F.3d at 919. As a result,
Frost was not permitted to appeal the dismissal of his Brady
and Napue claims. Part II of today’s opinion now reverses
 FROST V. GILBERT 25

course and expands the certificate of appealability to
resuscitate these claims, concluding that “reasonable jurists
could debate” whether the district court “was correct in its
procedural ruling.” Maj. Op. at 10. I disagree.

Frost presents a classic case of procedural default. We do
violence to principles of comity and federalism by failing to
stand by our previous rulings. See Edwards v. Carpenter,
529 U.S. 446, 451 (2000) (“The procedural default doctrine
and its attendant ‘cause and prejudice’ standard are ‘grounded
in concerns of comity and federalism.’”) (citing Coleman v.
Thompson, 501 U.S. 722, 730 (1991)); see also Murray v.
Carrier, 477 U.S. 478, 491 (1986).

II

Frost’s right to appeal the dismissal of his Brady and
Napue claims “is governed by the certificate of appealability
(COA) requirements now found at 28 U.S.C. § 2253(c).”
Slack v. McDaniel, 529 U.S. 473, 478 (2000). Specifically,
Frost is entitled to a COA on these issues only if he “has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Frost “satisfies this standard
by demonstrating that jurists of reason could disagree with
the district court’s resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).

However, the inquiry becomes “somewhat more
complicated where, as here, the district court dismisses the
petition on procedural grounds.” Slack, 529 U.S. at 484. In
such cases, the Supreme Court has instructed:
26 FROST V. GILBERT

When the district court denies a habeas
petition on procedural grounds without
reaching the prisoner’s underlying
constitutional claim, a COA should issue
when the prisoner shows, at least, that jurists
of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists of reason
would find it debatable whether the district
court was correct in its procedural ruling. . . .
Where a plain procedural bar is present and
the district court is correct to invoke it to
dispose of the case, a reasonable jurist could
not conclude either that the district court
erred in dismissing the petition or that the
petitioner should be allowed to proceed
further. In such a circumstance, no appeal
would be warranted.

Id. (emphasis added).

It follows that determining whether a COA should issue
on Frost’s procedurally defaulted claims has two components,
“one directed at [his] underlying constitutional claims and
one directed at the district court’s procedural holding.” Id. at
484–85. The Supreme Court has encouraged us to first
resolve the procedural issues, especially if that inquiry would
end the case. Id. at 485. For this reason, I initially address
the second component of the § 2253(c) inquiry, “whether
jurists of reason could conclude that the [d]istrict [c]ourt’s
dismissal on procedural grounds was debatable or incorrect.”
Id.
 FROST V. GILBERT 27

III

The district court dismissed Frost’s Brady and Napue
claims as procedurally defaulted. Frost I, 2011 WL 486198
at *1–2, adopting No. C09–725–TSZ–BAT, 2010 WL
5775657 at *4 (W.D. Wa. Oct. 5, 2010) (report and
recommendation). More specifically, the district court found
that Frost’s failure to raise these claims within one year after
his judgment, as required by Washington law, provided an
“independent and adequate state ground to bar habeas
review.” Id.; see also Casey v. Moore, 386 F.3d 896, 920
(9th Cir. 2004) (“We have already determined that this time-
related procedural statute, Wash. Rev. Code § 10.73.090,
provides an independent and adequate state ground to bar
federal review.”). The district court’s decision was absolutely
correct and, therefore, no further consideration on appeal is
warranted.

A

To show cause, Frost must show the existence of “some
objective factor external to the defense [that] impeded
counsel’s efforts to comply with the State’s procedural rule.”
Murray, 477 U.S. at 488. Frost fails to show that “the reason
for his failure to develop facts in state-court proceedings was
the State’s suppression of the relevant evidence.” Banks v.
Dretke, 540 U.S. 668, 691 (2004).

Frost provides no justification as to why he failed to raise
his Brady and Napue claims during the five-and-a-half years
between when Shaw’s plea deal was made publicly available
and when he filed his third state habeas petition. How could
he? The information was available on the public docket two
days after the jury found him guilty in 2003. Frost fails to
28 FROST V. GILBERT

explain why he could not have raised these issues on direct
appeal or in either of his first two state habeas petitions.
While Frost may not have been able to raise his Brady and
Napue claims before his conviction, he could have done so in
a timely post-conviction proceeding when the information
became part of the public record. See McCleskey, 499 U.S.
at 497 (“That [petitioner] did not possess, or could not
reasonably have obtained, certain evidence fails to establish
cause if other known or discoverable evidence could have
supported the claim in any event.”).

In fact, when Frost’s investigator finally got around to
reviewing Shaw’s complete court files in 2009, he easily
found Shaw’s domestic violence plea deal. The ease by
which Frost’s investigator obtained the impeaching evidence
trenchantly demonstrates that Frost could have brought his
Brady and Napue claims as early as 2003 if he had conducted
a “reasonable and diligent investigation.” Id. at 498. His
failure to do so does not constitute cause. See id.; see also
Henry v. Ryan, 720 F.3d 1073, 1083 (9th Cir. 2013) (no cause
established when petitioner suspected and had evidentiary
support for his Brady claim prior to federal habeas
proceedings); Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir.
2007) (“Where, like here, ‘the factual basis for a claim’ is
‘reasonably available to’ the petitioner or his counsel from
another source, the government is under no duty to supply
that information to the defense.”) (quoting Strickler v.
Greene, 527 U.S. 263, 283 n.24 (1999)).

Two Supreme Court cases Strickler v. Greene, 527 U.S.
263 (1999), and Banks v. Dretke, 540 U.S. 668 (2004),
demonstrate why Frost has not established cause. In both
Strickler and Banks, the Court held that cause existed after
the prosecution withheld exculpatory evidence at trial and
 FROST V. GILBERT 29

throughout state post-conviction proceedings. Strickler,
527 U.S. at 273–75; Banks, 540 U.S. at 675. In Strickler, the
petitioner did not seek discovery of possible exculpatory
evidence because the prosecutor maintained an “open file
policy,” which purportedly gave the petitioner access to all of
the prosecutor’s files. 527 U.S. at 276–78. The prosecution
in Strickler then withheld investigative notes and letters that
would have “cast serious doubt” on a key trial witness’s
testimony. Id. at 273. Similarly, in Banks, the State advised
the defense that there “would be no need to litigate discovery
issues,” because the State would “without the necessity of
motions, provide [the defense] with all discovery to which
[the defense was] entitled.” 540 U.S. at 675 (internal
alternation omitted). However, the prosecution in Banks
failed to disclose that an essential prosecution witness was a
paid police informant and that another key witness had been
intensively coached by prosecutors. Id.

Frost’s case is inapposite in several important respects.
First, unlike the “long-suppressed evidence” in Strickler and
Banks, the impeaching evidence Frost now relies on was not
suppressed during Frost’s post-conviction proceedings. Cf.
Banks, 540 U.S. at 675. Importantly, the prosecution never
“assert[ed] during state habeas proceedings that [Frost] had
already received everything known to the government.”
Strickler, 527 U.S. at 289; Banks, 540 U.S. at 692–93. And
unlike investigative notes or memoranda that are in the
exclusive possession of the government, Shaw’s plea deals
were part of the public record beginning in December 2003
shortly after the jury returned its verdict against Frost. Cf.
Strickler, 527 U.S. at 273–75. The State had no duty to
provide this reasonably available information to Frost. See
Matthews, 486 F.3d at 890–91. Finally, Frost knew during
trial that Shaw had entered into an agreement for a reduced
30 FROST V. GILBERT

sentence on the gun and drugs charges in exchange for his
testimony at Frost’s trial. Frost says he suspected that the
prosecution withheld information regarding its agreement
with Shaw. If Frost would have reviewed Shaw’s plea deal
in the gun and drugs case, he would have learned of Shaw’s
domestic violence plea agreement. His failure to do so “was
his own failure, and not a failure caused by the [prosecution]
or some other external factor.” Id. at 891.

The majority suggests that the King County Prosecutor’s
Office deliberately withheld Shaw’s plea deals from Frost in
2008. The majority’s brazen accusations are entirely
unsupported by the record, and the letters between Frost and
the Prosecutor’s Office tell a much different story than the
majority strains to tell. Lest there be any doubt on this issue,
I discuss each letter exchanged between Frost and the King
County Prosecutor’s Office in response to his subsequent
public records requests.

On March 22, 2008, five years after his conviction, Frost
first wrote to the Prosecutor’s Office to request “any
documents, statements, and/or reports that purtain [sic] to
EDWARD G. SHAW.” The Public Records Officer, Kelli
Williams, promptly informed Frost on April 1, 2008, that she
had “located four (4) case files for Edward G. Shaw that [she]
believed [were] responsive to [Frost’s] request.” The letter
provided Frost with the criminal charge and court case
number associated with each of these four cases and offered
to photocopy the complete case files at a cost of $195.
Notably, Shaw’s domestic violence case was included in this
list of cases. Frost declined to look at it.

On April 3, 2008, Frost wrote that he was “not looking for
[Shaw’s] complete case files” and limited his request solely
 FROST V. GILBERT 31

to documents “that could be used to ‘DETERMINE
WHETHER OR NOT MR. SHAW HAS WORKED AS A
STATE OR POLICE INFORMANT.’” [Emphasis in original]
By letter dated April 14, 2008, Williams clarified that she was
“unable to search [the] files by names of witnesses or
informants” but she offered to search through any particular
case files if Frost could provide her with the “police incident
number” or “court cause number.”

By reply letter the next day, Frost further limited his
public records request to just two case files: (1) documents
contained in his own case file from his 2003 trial, and
(2) documents contained in Shaw’s gun and drugs case file.
In this April 15 letter, Frost further narrowed his request to
“statements given by Eddy Shaw” and “any and all King
County Police Case Numbers brought up in those files.” On
April 28, 2008, Williams wrote back to confirm her
understanding of Frost’s now twice-amended records request
for “Eddie Shaw’s statements and King County Sheriff
(Police) case numbers” in the case files associated with
Frost’s 2003 trial and Shaw’s gun and drugs case. Finally, on
May 8, 2008, Williams wrote Frost that she was able to locate
“one statement of Eddie Shaw” in the gun and drugs case file.

After receiving this last letter, Frost ceased all
communication with the Prosecutor’s Office. He does not
explain why he abandoned his search or why he declined to
pay for copying to review any documents associated with
Shaw’s domestic violence case. In addition, Frost provides
no justification as to why he limited his request solely to
Shaw’s police statements and declined to review Shaw’s plea
deal in the gun and drugs case. If Frost had reviewed the gun
and drugs plea deal, he would have discovered Shaw’s
domestic violence case referenced therein. It was certainly
32 FROST V. GILBERT

not hidden. While the majority tries to paint a nefarious
picture of deliberate prosecutorial misconduct and complicity,
the record currently before us instead tells a different story.
It shows that the Prosecutor’s Office responded promptly and
accurately to all of Frost’s record requests. It shows that the
Prosecutor’s Office offered to send Frost all of the documents
associated with Shaw’s criminal history, including Shaw’s
plea deals in the gun and drugs case and in the domestic
violence case. Frost, however, declined to review these
documents. Therefore, Frost has not shown cause to excuse
his procedural default, and the majority errs by concluding
otherwise.

B

But even if Frost could show cause, he certainly cannot
show prejudice. To show prejudice for his Brady claim, Frost
must show a “‘reasonable probability’ that the result of the
trial would have been different if the suppressed documents
had been disclosed to the defense.” Strickler, 527 U.S. at
289. To show prejudice for his Napue claim, Frost must
show a “reasonable likelihood that the false testimony could
have affected the judgment of the jury.” Sivak v. Hardison,
658 F.3d 898, 912 (9th Cir. 2011) (internal citation and
quotation omitted).

The majority agrees that Frost cannot show such
prejudice. Maj. Op. at 13–15. This is not surprising
considering the evidence of guilt at Frost’s trial was
overwhelming. Frost gave three taped confessions, all of
which were entered into evidence at trial, and Frost testified
in detail about his involvement in the eleven-day home
invasion and commercial robbery spree. Further, as the
majority observes, Shaw’s undisclosed plea deal in the
 FROST V. GILBERT 33

domestic violence case added little impeachment value
considering the jury was already informed that Shaw had
received leniency from sentencing on other serious felonies
in exchange for his testimony against Frost. Maj. Op. at 14.
The majority correctly concludes that “there is no ‘reasonable
likelihood’” that Shaw’s false testimony about only having
one plea agreement could have ‘affected the judgment of the
jury,’” and that “there is no ‘reasonable probability’ that the
outcome [at Frost’s trial] would have been different” had the
jury learned of Shaw’s second plea agreement, which had not
yet been accepted by a different judge. Maj. Op. at 13–14.

In other words, the majority agrees that the district
court’s dismissal of Frost’s Brady and Napue claims was
correct. In these instances—“[w]here a plain procedural bar
is present and the district court is correct to invoke it to
dispose of the case”—the Supreme Court has clearly
instructed that “no appeal [is] warranted.” Slack, 529 U.S. at
484. The majority’s decision to reverse our prior opinion and
to now expand the COA only to deny these meritless claims
is a blatant disregard of binding Supreme Court precedent
enforcing procedural bars and a lamentable waste of precious
judicial resources.

IV

Section II C of Judge Kozinski’s opinion launches a
groundless, personal attack against named employees of the
King County Prosecutor’s Office. Indeed, he has not
garnered support from a majority of the court to support it.
Section II C is not the ruling of our en banc court; it is merely
hortatory.
34 FROST V. GILBERT

The Section accuses several King County employees of
“professional misconduct,” providing “incorrect or
misleading information,” and “stonewall[ing]” Frost. Op. at
15–18. Incredibly, no discovery has been conducted on these
issues; nor has an evidentiary hearing taken place. That’s not
surprising given the undisputed fact that the claim was ruled
procedurally defaulted by both state and federal courts.
Nonetheless, Judge Kozinski engages in sheer speculation
without any factual basis to support raw supposition. But
what we do have in the record thus far provides no support
for this unwarranted assault. Sadly, Judge Kozinski elects
himself finder of fact in order to hold the individuals “to
account for their conduct” and then exhorts these individuals
to “seek to clear their names” with the state bar. Op. at 16,
18.

The Section accuses Zachary Wagnild, the deputy
prosecuting attorney in Frost’s case and Shaw’s gun and
drugs case, of willfully and deliberately withholding Shaw’s
domestic violence plea agreement and permitting Shaw to lie
on the stand. Op. at 15–17. It also accuses Gary Ernsdorff,
the deputy prosecuting attorney in Shaw’s domestic violence
case, of engaging in complicity to keep Shaw’s domestic
violence plea deal secret. Op. at 17.

These reckless accusations are made without any
knowledge of the actual facts. Section II C fails to consider
the possibility that Wagnild did not know about Shaw’s
domestic violence plea deal at the time of Frost’s trial or the
possibility that Shaw’s plea deals were not signed or fully
completed until entered in open court on December 18, 2003,
after Frost’s trial. It is also likely that Shaw’s gun and drugs
case and domestic violence case were handled by two
different units in Washington State’s largest county
 FROST V. GILBERT 35

prosecutor’s office, resulting in a classic case of “the left
hand didn’t know what the right hand was doing.” The
bottom line is, we just don’t know what happened. Yet, the
Section automatically assumes the worst of these two King
County prosecutors and, as a result, brands them with a
scarlet letter.

Section II C also accuses Kelli Williams, a non-attorney
Public Records Officer, of providing “incorrect or misleading
information,” and declares Williams to be either incompetent,
indolent, or deliberately deceptive. Op. at 17–18. Nonsense.
As shown by the 2008 letters, Williams promptly and
accurately responded to Frost’s record requests and offered to
provide Frost with all of the information he needed. Williams
may not have even known Wagnild or Ernsdorff or even been
a King County employee at the time of Frost’s trial. It is
highly likely that she had absolutely no prior knowledge of
Frost’s case, especially considering that Frost’s public
records request came five years after his conviction. Yet,
once again, the author assumes the worst: that Williams
deliberately hid “the deception committed by her office.” Op.
at 17–18.

Ultimately, Section II C is used as a platform to offer the
author’s “two-cents” on the supposed inner-workings of
Washington’s criminal justice system. Along the way, the
character and integrity of several public employees is
tarnished. Thankfully, a majority of the court has refused to
join in this indefensible and intemperate attack.

I respectfully dissent as to Part II of the majority opinion.
I concur as to Part I and in the judgment denying habeas
relief.