Opposition Brief — Glebe v. Frost, 135 S. Ct. 429 (2014) (No. 14-95)

No. 14-95

IN THE SUPREME COURT OF THE UNITED STATES

PATRICK GLEBE, Superintendent,

Stafford Creek Corrections Center,

Petitioner,

-V.-

JOSHUA JAMES FROST,

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Respondent Joshua James Frost, through counsel, asks leave to file the

attached Brief in Opposition to Petition for Writ of Certiorari in forma pauperis.

Respondent was represented on appeal by counsel appointed under the Criminal

Justice Act, 18 U.S.C. § 3006A(a\(2\B). This motion is brought pursuant to Rule

39.1 of the Rules of the Supreme Court of the United States.

Respectfully submitted

September 29, 2014 By

ERIK B. LEVIN

Counsel for Respondent

No. 14-95

IN THE SUPREME COURT OF THE UNITED STATES

PATRICK GLEBE, Superintendent,

Stafford Creek Corrections Center,

Petitioner,

-V.-

JOSHUA JAMES FROST,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

ERIK B. LEVIN

Counsel of Record

LISSA W. SHOOK

Law Office of Erik B. Levin

2001 Stuart Street

Berkeley, California 94703

(510) 978-4778

erik@erikblevin.com

Counsel for Respondent

Joshua James Frost

TABLE OF CONTENTS

I sosisuensatemnnennonnbnennt il

I eemesianentanon l

I. The Sixth Amendment Right to Present Proper Argument in

EEE l

Il. The Trial Court Barred Mr. Frost From Challenging the

Sufficiency of the Evidence in Summation....................ccccceseeeees 3

III. Washington State Proceedings .................ccccccccesssesereeeeerseeeseeeneeeeees 5

IV. Federal Habeas Proceedings ..................c.ccccccccccceseseeseseesereeeeseeeeenens 6

REASONS FOR DENYING THE WRIT ............:.:-::cccecccccccseccseseseecseecesseseecerenees 8

I. This Case Is a Poor Vehicle for Assessing Under What

Circumstances Less-Than-Complete Denials of the Right to

Present Summation Are Subject to Harmless Error. .................... 4

Il. There is No Circuit Split on Whether Less-Than-Complete

Denials of Summation Are Subject to Harmless Error. ................ )

Ill. The Ninth Circuit Did Not Rely on Circuit Precedent as

Cloasly Botabbliatied Law. ....1.2.0scscsceccssscesesesossesesesseseesescsesesecserovees 14

IV. The State Seeks Error Correction, and Its Argument

ESE cha LE SEs en 16

A. The Sixth Amendment Right to Present Proper Argument

in Summation Is Clearly Established. .....................cccccceceee 17

B. The Ninth Circuit Opinion Is Consistent with this Court's

Structural Error Case Law. ...............ccccccccccccccccssscsssscccesceseees 26

C. The Ninth Circuit Opinion Does Not Conflict with a

Federal Due Process Case or State Affirmative Defense

EE SL EE ee oa ae 31

i csisnonatibal 35

a ssiniienopaninnnemnest la

TABLE OF AUTHORITIES

Page(s)

Cases

Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) .........cccccccccccscseseseeeceeeeeeeeeees 23

Arizona v. Fulminante, 499 U.S. 279 (1991) ........ccccsescsssssssesseseenesesneneenenseesees 27

Batson v. Kentucky, 476 U.S. 79 (1986) ...........0.:.c.cssscecsesessesesesesesersesseccecececeees 24

ay A ey ES SINE cvs cnesiconscicnsinensnieceniinitsinetniieaiiabianiniidiiaiil 3, 24, 26

Berkemer v. McCarty, 468 U.S. 420 (1984).........cccccccccssssssssssesesesesesesssesereeeserers 25

Bradshaw v. Rickey, 546 U.S. 74 (2005)...............cssscsessessecessesecsessessseceeeneneens 32

Brooks v. Tennessee, 406 U.S. G05 (1972) ..............ccceccesessesessesntsesensseeneeenenesees 29

Carella v. California, 491 U.S. 263 (1989) ..............scecsecsnesnessvesnessneeneeneceneneesees 30

Carey v. Musladin, 549 U.S. 70 (2006) .............cesssssssesssssssessesneensseenesnssecessecesees 23

Chapman. v. California, 386 U.S. 18 (1967) ...........ccccsccsesnesnssneeneseesesnesnesvennenees 28

Conde v. Henry, 198 F.3d 734 (9th Cir. 2000) .............ccecccseseeseseeseeeeeeeees 8, 15, 16

Connecticut v. Arline, 223 Comm. 52 (1992) ............sccsessessesnesnesneenrsneeneees 13, 14

Crane v. Kentucky, 476 U.S. 683 (1986) ..............:co:csccsssecsessssssssessetseressseeeneeees 30

Delaware v. Van Ardall, 475 U.S. 673 (1986) ............cccssessessesessesseeneneeeenreneers 30

Eaglin v. Welborn, 57 F.3d 496 (7th Cir. 1995) ............cccccccceseseeeeseseeeseneees 32, 33

Faretta v. California, 422 U.S. 806 (1975) ............cccssssessessessesssnesnesesseseneneeneers 25

TABLE OF AUTHORITIES—continued

Ferguson v. Georgia, 365 U.S. 570 (1961) .ecccccccccocesssovecssesevssseeensussesesseeeene 29

Frost v. Van Boening, 692 F.3d 924 (9th Cir. 2012)..............cccsecsesvesnessessvenveeens 7

Frost v. Van Boening, 757 F.3d 910 (9th Cir. 2014)...0........cccsecsessesneeseenees passim

GE ©, SR, TG, GRE Ge, TID ccccsccseeccsccncescccsncescsscmnnsnsesennccntntinnans 20

Hedgpeth v. Pulido, 555 U.S. 57 (2008) .......ccccccecsssssvcecssssoseseessssesseseeeeeereeee 28

Herdt v. Wyoming, 816 P.2d 1299 (Wyo. 1991) .........cccccccccccccseseeeeeeeeseseeeeeees 13

IT, I 31

Herring v. New York, 422 U.S. 853 (1975) .........cccsecsesssseesesseseeneseeneeneneenees passim

In re Winship, 397 U.S. 358 (1970) ....ccccccccccssssesseosevvsssvessssseseseseseeeeeeseee passim

Kane v. Garcia Espitia, 546 U.S. 9 (2005) .............-cccccessecececeeesesesesesnereeeeeeneeen 25

SG TER Ci ers GE eeccrcretcncsinsncccersnnteciciicintnnivmnsiintenci 16

Lemos v. Texas, 130 S.W.3d 888 (Tex. 2004) .0.........cccccccccccccoeceseeceeeeesereveeee 12, 13

Lockyer v. Andrade, 538 U.S. 63 (2003).......cccccsccooessusvsssseessssssssasessessenvesne 23

Lynch v. State, 9 Ind. 541, 1857 WL 3659 (1857) .ccccccccccccssccesseevseceeeeseeeeenen 20

Marshall v. Rodgers, 133 S.Ct. 1446 (2013) ..........ccsccsecsecsssnesessessesseenennenreessnes 15

Miranda v. Arizona, 384 U.S. 436 (1966) ............cccccccesesseseesesnsenesesnesnsereerneenees 25

Neder v. United States, 527 U.S. 1 (1999) ..............secsscsesessessessecsessesnseneneees 30, 31

Nelson v. Indiana, 792 N.E.2d 588 (Ind. Ct. App. 2003) ..............-.cccccc000- 12, 13

TABLE OF AUTHORITIES—continued

Panetti v. Quarterman, 551 U.S. 930 (2007) ..........ccccesesseveseeneeneneneeneeneneenes 23

Parker v. Matthews, 132 S.Ct. 2148 (2012) ............c.csesssssssesssssesssnsesssseseenenseees 15

ees Goa, SRT. Sie Ge eer crerccnrsiceenenesinenenamnmeimennies 21

ees Fe, Sb Fae © Qe crrerrctersnecnensneesenetsceentenememneeannen 25

Papen ei, GS Gs Gar Ge cerececeeenemereemmmion 30

Porter v. State, 65 S.E. 814 (Ga. Ct. App. 1909) .............ccccccccceeeeeeeseneeneneenenees 20

Richardson v. Bowersox, 188 F.3d 973 (8th Cir. 1999).............cccseseeeesereneenees 10

SU SR, GS Ba a errscrrccrsresecenreerccemnremenepernmcmseeiine 28, 30, 31

Seattle v. Erickson, 104 P. 1128 (Wash. 1909) ............c-cccccccocecssuesssvesssveseseeseens 21

State v. Ballenger, 24 S.E.2d 175 (S.C. 1943) .......ccccccccccccssssessssssssesesessssneeseenen 21

State v. Frost, 161 P.3d 361 (Wash. 2007)............0.ccssecssesseseeseneseeeceneenes passim

State v. Hoyt, 47 Conn. 518, 1880 WL 2281 (1880)..............sccssesesesseneenenenees 21

State v. Mayo, 86 P. 2561 (Wash. 1906).................c0ccssssorscscesnsnssssesesesssssessvosensees 21

State v. Riker, 869 P.2d 43 (Wash. 1994) ............0...c.cscessscscssssossssssssssssesosesesessees 6

State v. Rogoway, 78 P. 987 (Or. 1904), rehearing, 81 P. 234 (1908).............. 21

State v. Shedoudy, 118 P.2d 280 (N.M. 1941) .........ccsccscsssesvessseeesneseensneneseenenees 20

SP Tens, FEW GR iii ccnnrccccccsssncesecenscavessstscmsesmncemmemenasemsnnssensnnts 21

Gs TERE, TPs Ge: Tie cnrccnscnnnsessnnnsnesecnsessccnsanecscssnnscscsnasessann 20, 21

IV

TABLE OF AUTHORITIES—continued

Stewart v. Commonwealth, 11 A. 370 (Pa. 1887) ...........ccccceseseeseeeseeeneeeeneneneees 20

Strickland v. Washington, 466 U.S. 668 (1984) ...0..........ccccsessesseseseeneeneenenesees 29

Sullivan v. Louisiana, 508 U.S. 275 (1993)......ccssssseessesneseeneseseeeneneenens 26, 28

Swain v. Alabama, 380 U.S. 208 (1966) ................c.cecresesscscsescssssssserssseseoeeseseoes 24

a Sey es CITED coescnrcensnteniniccenenessentesinnncemanienseienneniueéts 24

United States v. Bautista, 252 F.3d 141 (2d Cir. 2001) .0.......ccccccsecceeseeneeenene 11

United States v. Blanche, 149 F.3d 763 (8th Cir. 1998) ..........ccccsccceseeneees nan 8

United States v. Cronic, 466 U.S. 648 (1984) ..........cccscseseseseseneenenees 3, 24, 26, 31

United States v. Davis, 557 F.2d 1239 (8th Cir. 1977) ...000.0.......0ccccececeeeceeeeeee 1]

United States v. DeLoach, 504 F.2d 185 (D.C. Cir. 1974).........ccccccceseseeeeeneees 12

United States v. Gaudin, 515 U.S. 506 (1995)...........cccsccsssesesseseeneseenenenennenes 2

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ..........ccccccsecseneneenees 2, 28

United States v. Miguel, 338 F.3d 995 (9th Cir. 2003) ...........ccccceeeeees 8, 15, 16

United States v. Poindexter, 942 F.2d 354 (6th Cir. 1991) ..........cccccccsseseeeseees 11

United States v. Russell, 411 U.S. 423 (1973) ........sscssesssessesessseseeeeneneneenenenens 32

United States v. Sawyer, 443 F.2d 712 (D.C. Cir. 1971) .......cccccsecsseseseeeeeeeeees 10

United States v. Wilcox, 487 F.3d 1163 (8th Cir. 2007) 0.0... ccccseseeeseeseeneneeee ll

Washington v. Recuenco, 548 U.S. 212 (2006)..............ccccccceseeseeseeeeeseesceseeeeenees 30

TABLE OF AUTHORITIES—continued

Weaver v. State, 24 Ohio St. 584 (1874).............ccccccsscsscssssssssssssesesscesscssssersssess 22

White v. Woodall, 134 S.Ct. 1697 (2014)...............ccesssssssssssssessessessssssenseees 15, 26

Williams v. State, 60 Ga. 367, 1878 WL 2652 (1878)...........csssesereseeneseeneevens 22

Williams v. Taylor, 529 U.S. 420 (2000).........ccsccseccseeseesseseserseesscereerseesessenes 12

Wingo v. State, 62 Miss. 311, 1884 WL 3462 (1884) ............ccccssssseseseseeeneneens 21

Word v. Commonwealth, 30 Va. 743 (1827)..........cccccccecceesceesceseeesceeeeeeceeseeseeees 20

Yarborough v. Alvarado, 541 U.S. 652 (2004) ..0.......ccccccccseeseeseneseeeneenenees 23, 25

a ee, SEE, FF es Sie Co cresencensenneennnesecenrenensccssnsemnaensenenreeensnetins 30

ee Os SI, SE GR BO cocnrcesesnessccersensssnessemencssensnsenennmmenan 21

Yopp v. State, 178 A.2d 879 (Md. 1962) ...............ccecccceseeseseseeeeneeneees 1, 19, 27, 35

Statutes

ee NN sennsrcecneserncsessensnensssneesninitenmenennitesicnsincnmnenmatiiaiiian 8, 22, 23

Constitutional Provisions

I A OT sess amateeentenercmnciiaiegnatitieeeitesteteeadiniatntaill passim

re EET 5

STATEMENT OF THE CASE

I. The Sixth Amendment Right to Present Proper Argument in

Summation

In Herring v. New York, this Court recognized the Sixth Amendmeut

“right of a defendant to be heard through counsel necessarily includes his right

to have his counsel make a proper argument on the evidence and applicable

law in his favor[.]” 422 U.S. 853, 860 (1975) (quoting Yopp v. State, 178 A.2d

879, 881 (Md. 1962)). This Court struck down a New York statute empowering

judges to deny summation in bench trials because the statute violated the

Sixth Amendment by unreasonably restricting defense counsel’s vital role in

the adversarial factfinding process.

Herring recognized the fundamental right to present proper argument in

summation, and did not limit this legal principle to bench trials or to the

complete denial of any summation. Jd. at 858-61. Herring made clear that the

Sixth Amendment left the trial judge “no discretion” to deny the accused the

right to make a proper argument, id. at 860 (quoting Yopp, 178 A.2d at 881),

while acknowledging that a trial judge retained latitude to limit summation to

a reasonable time and ensure that summation did not “stray unduly from the

mark, or otherwise impede the fair and orderly conduct of the trial.” Jd. at 862.

Herring identified the “right to be heard in summation of the evidence

from the point of view most favorable” to the defendant as vital to the

framework of the adversarial criminal trial. /d. at 864. “In a criminal trial. . .

no aspect of such advocacy could be more important than the opportunity

finally to marshal the evidence for each side before submission of the case to

judgment.” Jd. at 862.

The right to present proper argument in summation is essential to due

process because “closing argument is the last clear chance to persuade the trier

of fact that there may be reasonable doubt of the defendant's guilt.” Jd. (citing

In re Winship, 397 U.S. 358 (1970)). Due process requires the prosecution to

prove all elements of the crime beyond a reasonable doubt, see Winship, 397

U.S. at 361, and guarantees the 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).

Herring found denying a proper argument was per se reversible error

because “[t]here is no way to know whether . . . appropriate arguments in

summation might have affected the ultimate judgment in this case.” Id. at 864.

See United States v. Gonzalez-Lopez, 548 U.S. 140, 149, n.4 (2006) (“[H]ere, as |

we have done in the past, we rest our conclusion of structural error upon the

difficulty of assessing the effect of the error.”) (citations omitted). Accordingly,

this Court consistently treats Herring violations as structural error. See Bell

v. Cone, 535 U.S. 685, 696 (2002); United States v. Cronic, 466 U.S. 648, 659,

& n.25 (1984).

Il. The Trial Court Barred Mr. Frost From Challenging the

Sufficiency of the Evidence in Summation

Mr. Frost was charged with participating in five armed robberies. The

prosecutor’s theory turned entirely on Mr. Frost being an accessory to the

charged offenses. State v. Frost, 161 P.3d 361, 368 (Wash. 2007) (“Frost I’);

Respondent’s Appendix (“Resp. App.”) 4a, 6a-7a. Mr. Frost was not alleged to

have carried a firearm in any of the instances; he acted primarily as a driver,

and remained in the car during four of the five robberies. Frost J, 161 P.3d at

364.' His defense was that there was insufficient evidence to prove he

participated in his accomplices’ criminal acts with adequate knowledge of

promotion or facilitation, and to the extent that he was involved, he was under

duress. Jd. at 364. The Washington Supreme Court noted the evidentiary basis

for Mr. Frost's reasonable doubt argument was “best illustrated by the

! The State erroneously suggests that Mr. Frost was armed and a principal during

the second robbery. See Pet. at . (“They next robbed a fast-food restaurant armed

with guns.”) (citing Frost I, 161 P.3d at 364). The Washington Supreme Court

correctly reported that Mr. Frost “acted as the driver” for that offense and there was

no evidence he was armed. Frost I, 161 P.3d at 364. This was the prosecution’s theory

at trial. See Resp. App. 6a-7a.

robberies in which Frost was only a driver and remained in the car.” Jd. at 368-

9.

Prior to summation, the prosecution moved to preclude Mr. Frost's

reasonable doubt argument: “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.” Pet. App. 146a.

The trial court ordered Mr. Frost to concede guilt to preserve his duress

defense: “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... . You

must admit the elements of the offense have been proved before you can use

the duress offense[.]” Pet. App. 146a. Accordingly, Mr. Frost’s counsel conceded

guilt during summation. See Pet. App. 150a-151a, 153a-154a, 157a, 161a-162a.

The prosecution capitalized on these concessions, arguing that

“noticeably absent” from the defense summation was any discussion of the

relevant law. “There is a reason for that/,|” the prosecution told the jury,

“[bjecause if [defense counsel] had pointed you to the law and pointed to the

elements of the offenses and he pointed to the firearm instruction and made

his argument you would realize that his argument is phoney [sic], his

arguments don’t match up with what the law is and that is really what we are

here for.” Resp. App. 3a.

The jury convicted Mr. Frost, and because the individuals he was alleged

to have assisted carried firearms during the offenses, Mr. Frost was sentenced

to nearly 55 years in prison, 44 years of which were mandatory firearm

enhancements.

III. Washington State Proceedings

On direct appeal, the Washington Supreme Court unanimously

concluded that the trial court erred in precluding Mr. Frost’s legally-available

and factually-supported reasonable doubt argument. The trial court error

violated the “Sixth Amendment right to have counsel make argument to the

jury,” Frost I, 161 P.3d at 367 (citing Herring, 422 U.S. 853); id. at 371 (Sanders

J., dissenting), and “lessened the State’s burden [of proof],” id. at 368, a

violation of the Fourteenth Amendment “due process requirement that the

State prove each element of a charged offense beyond a reasonable doubt.” Jd.

at 367 (citing Winship, 397 U.S. 358).

The state supreme court found there was a legal and evidentiary basis

“for counsel to argue that the State failed to prove Mr. Frost participated in

each of his accomplices’ criminal acts with adequate knowledge or promotion

or facilitation[.]” Id. at 368-9. The trial court erred by misinterpreting state

law to require the defendant to concede guilt before presenting a duress

defense. Jd. at 365 (“We hold the trial court erroneously interpreted our

decision in [State v.] Riker[, 869 P.2d 43 (Wash. 1994),] and, based on that

erroneous interpretation unduly limited the scope of Frost’s counsel's closing

argument, thus abusing its discretion.”). The Washington Supreme Court held

this error was of a constitutional magnitude, and not an exercise of the trial

court’s “latitude in controlling the duration and limiting the scope of closing

summations.” Herring, 422 U.S. at 862 (quoted in Frost I, 161 P.3d at 365). A

bare majority of the court, however, ignored Herring’s admonition that “[t]here

is no way to know whether . . . appropriate arguments in summation might

have affected the ultimate judgment|,]” Herring, 422 U.S. at 863, and

concluded it was “equipped to assess whether the trial court's mistake . . .

affected the outcome of this case” and found the error harmless. Frost J, 161

P.3d at 370.

IV. Federal Habeas Proceedings

Mr. Frost filed a petition for writ of habeas corpus in federal district court

challenging the Washington Supreme Court’s decision to apply harmless error

as an unreasonable application of Herring and Winship. The district court

denied the writ, but certified the issues for appeal. After a split panel of the

Ninth Circuit affirmed the denial of relief, Frost v. Van Boening, 692 F.3d 924

(9th Cir. 2012), Mr. Frost sought en banc review.

The Ninth Circuit, sitting en banc, agreed with the Washington Supreme

Court’s conclusion that the trial court had violated Herring and Winship, but

held that it was unreasonable on the unique facts of this case—including the

state court finding that the error lowered the prosecution’s burden of proof—

to conclude these constitutional violations were trial errors subject to

harmlessness review. Frost v. Van Boening, 757 F.3d 910, 914-15, 917 (9th Cir.

2014) (“Frost II”); see id. at 917 (“a defendant cannot constitutionally be tried

using a lesser burden of proof’) (citing Winship, 397 U.S. at 364-5).

The Ninth Circuit cited Herring's admonition that no matter how “open

and shut” the case may seem, “there are ‘cases where closing argument may

correct a premature misjudgment and avoid an otherwise erroneous verdict.’

‘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.” Jd.

at 916 (quoting Herring, 422 U.S. at 863).

The Ninth Circuit then noted that it was “[flor these reasons we have

held that preventing a defendant from arguing a legitimate defense theory

constitutes structural error.” Frost IJ, 757 F.3d at 916 (citing United States v.

Miguel, 338 F.3d 995, 1000-03 (9th Cir. 2003), and Conde v. Henry, 198 F.3d

734, 739 (9th Cir. 2000)). The court noted that its decisions “do not constitute

‘clearly established Federal law’ for the purpose of 28 U.S.C. § 2254(d)(1)[.]” Id.

at 916, n.1.

REASONS FOR DENYING THE WRIT

This case is unworthy of certiorari for four reasons. First, this case is

unlikely to provide any definitive guidance on when less-than-complete denials

of the right to present summation are subject to harmless error because of the

restricted habeas corpus inquiry. Second, the State cannot identify any circuit

conflict on when less-than-complete denials of summation are subject to

harmless error. Third, this case presents no important issue of federal law

because it is well-settled that courts may not base their conclusion that federal

law is clearly established on circuit precedent, and the Ninth Circuit followed

this proscription. Finally, the petition, at root, seeks error correction, which is

not a basis for granting certiorari, particularly in this case, where the state’s

argument lacks any merit.

I. This Case Is a Poor Vehicle for Assessing Under What

Circumstances Less-Than-Complete Denials of the Right to

Present Summation Are Subject to Harmless Error.

The State does not raise in its Question Presented whether and under

what circumstances less-than-complete denials of summation are subject to

harmless error. Instead, it focuses exclusively on the habeas corpus issue:

whether it is “clearly established” that the type of error here is structural.

Given the restricted focus of this analysis, it is exceedingly unlikely that this

Court would be able to issue a definitive holding that would provide guidance

on this issue in the non-habeas context. Nor is it necessary, since the error is

rare—as evidenced by the dearth of lower court decisions considering it—and

there is a general consensus about how to evaluate its effects.

Il. There is No Circuit Split on Whether Less-Than-Complete

Denials of Summation Are Subject to Harmless Error.

The precise type of Herring error here—precluding defense counsel from

arguing insufficient evidence under circumstances where state law allows him

to do so—is different and more egregious than the other types of denials at

issue in the cases from lower courts that the State cites. Indeed, the State

identifies no other case involving exactly this type of Herring error—one that

by the state court’s own admission, lessened the prosecution’s burden of proof

across the board, not just on one element.

The cases the State cites reaffirm the line Herring drew and the Ninth

Circuit followed: trial courts have discretion “in controlling the duration and

limiting the scope of closing summations[,|” but no authority to deny “closing

argument on a legitimate defense theory.” Frost IJ, 757 F.3d at 915 (quoting

Herring, 422 U.S. at 862).

1. Richardson v. Bowersox, 188 F.3d 973 (8th Cir. 1999), Pet. at 24,

relied on Herring to limit summation to arguments that lacked an evidentiary

basis. Jd. at 979-80 (quoting Herring, 422 U.S. at 862). Richardson concluded

that the trial court limitation was proper because misrepresenting facts in

summation was prohibited and might confuse the jury. Jd. at 980 (quoting

United States v. Sawyer, 443 F.2d 712, 713-14 (D.C. Cir. 1971)). Moreover, the

trial court had permitted the defendant “to argue extensively during closing

argument that he did not participate in the [homicides,]” id. at 980, and

therefore, even if it were error to limit summation to facts in evidence, the court

concluded there would be no “manifest injustice[.]” Jd. Richardson is therefore

in line with the Ninth Circuit’s conclusion that there is no Herring error unless

the court completely precludes a legitimate defense theory. See Frost IT, 757

F.3d at 918 (total preclusion of an argument is constitutional error “which

Herring instructs is structural error. ... Absent Herring error there is no error

10

at all or trial error subject to a harmlessness inquiry.”).

The remaining circuit cases the State cites, Pet. at 24-26, similarly apply

harmless error to summation limitations that fall short of complete preemption

of a legitimate defense theory and do not lower the state's burden of proof.”

Harmless error review this context is entirely consistent with the Ninth Circuit

opinion below. See Frost II, 757 F.3d at 915.

In contrast, the Washington Supreme Court found that precluding Mr.

Frost’s entire reasonable doubt argument did lower the prosecution’s burden

of proof. Frost J, 161 P.3d at 368 (“By preventing counsel from arguing this

point [reasonable doubt] in closing, the trial court lessened the State's

2 See United States v. Wilcox, 487 F.3d 1163, 1173 (8th Cir. 2007) (barring defense

summation argument that suppressed forensic evidence did not exist was harmless

where the trial court did not preclude defendant from presenting his defense theory);

United States v. Bautista, 252 F.3d 141, 145 (2d Cir. 2001) (affirming preclusion of

portions of the defense closing argument that included “objectionable factual

assertions that certain things not offered in evidence do not in fact exist” as an

appropriate exercise of discretion and noting the restriction did not “distort and

effectively lower the burden of proof”) (citing Herring, 422 U.S. 853) (internal

quotations omitted); United States v. Blanche, 149 F.3d 763, 769 (8th Cir. 1998)

(affirming trial court order barring summation on portions of the interview videotape

not in evidence, and in the alternative, it was harmless error because the defense did

refer to the videotape despite the trial court order); United States v. Poindexter, 942

F.2d 354, 359-60 (6th Cir. 1991) (trial court barred comments on the absence of a

particular type of forensic evidence, but did not bar the defense from arguing

insufficient evidence to convict); United States v. Davis, 557 F.2d 1239, 1244 (8th Cir.

1977) (even if trial court erred in limiting the scope of summation, it was harmless

because the court permitted counsel to argue his theory of defense and “did not

instruct the jury to disregard the argument’).

11

burden”). The State has never challenged the Washington Supreme Court's

finding below, and in the interests of comity and federalism, it is entitled to

deference. Cf. Williams v. Taylor, 529 U.S. 420, 436 (2000) (noting “AEDPA’s

purpose to further the principles of comity, finality, and federalism.”).

The State also contends Frost I/ conflicts with a pre-Herring case, United

States v. DeLoach, 504 F.2d 185 (D.C. Cir. 1974), in which the trial court barred

defense counsel from arguing in summation what the court considered factual

misrepresentations, but otherwise permitted him to challenge the sufficiency

of the evidence. The D.C. Circuit reversed under harmless error after

concluding the defense was arguing inferences based on evidence, not

misstating facts in evidence. Id. at 120-22. Frost IT does not conflict with

DeLoach, it simply addresses an issue not raised in Deloach—whether

completely precluding any challenge to the sufficiency of the evidence (when

state law permits such an argument) is structural error under Herring.

2. The State’s attempts to create a split between the Ninth Circuit's

opinion and state courts is equally unavailing. See Pet. at 17 (citing Lemos v.

Texas, 130 S.W.3d 888 (Tex. 2004), and Nelson v. Indiana, 792 N.E.2d 588 (Ind.

Ct. App. 2003)). In Lemos v. Texas, the trial court erroneously precluded the

defense from arguing in summation that the defendant's blood alcohol

12

concentration could have risen during the two-hour period between the car

accident and the blood alcohol test, but permitted him to argue “there was no

evidence of what it [Lemos’s blood alcohol content] had been at the time of the

crash.” 130 S.W.3d at 890, 892. And in Nelson v. Indiana, the trial court

erroneously barred defense counsel from challenging the reliability of forensic

testing during his summation, but permitted him to argue the “poorly tested

evidence” was an insufficient basis to convict. 792 N.E.2d at 594 (emphasis in

original). Neither Lemos nor Nelson involve the “absolute preemption of . . . [a]

factually supported, legally available defense theor[y].” Frost IJ, 757 F.3d at

918.

3. | While the State cannot identify any case that conflicts with the

Ninth Circuit opinion, it ignores those that adopt the very same interpretation

of Herring. In a strikingly similar case, Herdt v. Wyoming, 816 P.2d 1299 (Wyo.

1991), the Wyoming Supreme Court held that precluding the defendant from

arguing consent in addition to reasonable doubt in a sexual assault trial

“deprived appellant of his fundamental right to present closing argument” as

set forth in Herring, and “[s]uch deprivation is legally presumed to result in

prejudice.” Jd. at 1302.

And in Connecticut v. Arline, 223 Conn. 52 (1992), the Connecticut

13

Supreme Court held it was per se reversible error to deny the defendant his

federal Sixth Amendment right to “full and fair participation” in the trial by

depriving him of “any opportunity to argue the motive for bias of the state’s

chief witness” where it was “the linchpin of the reasonable doubt defense” and

precluding it was tantamount to denying the defense altogether. Jd. at 64.

Looking to Herring, Arline held that “the right to present a closing argument

is abridged not only when a defendant is completely denied an opportunity to

argue,” but also “when a defendant is deprived of the opportunity to raise a

significant issue that is reasonably inferable from the facts and evidence ... .

[and] the prohibited argument bears directly on the defendant’s theory of the

case.” Id. at 64 (citations omitted). A “per se rule of automatic reversal more

properly vindicates the defendant's fundamental constitutional right to

assistance of counsel guaranteed by the sixth amendment.” Jd. at 65. (citations

omitted).

Ill. The Ninth Circuit Did Not Rely on Circuit Precedent as

Clearly Established Law.

The State does not identify any real issue of habeas corpus law at stake

in this case. It does not argue that granting certiorari is necessary to resolve

any issue concerning what exactly “clearly established” means. Instead, it

claims that the Ninth Circuit relied on its own precedent to define clearly

14

established federal law in violation of this Court’s directive in White v. Woodall,

134 §.Ct. 1697, 1702, n.2 (2014). This claim is not worthy of certiorari because

this Court has already settled that circuit law may not form the basis of habeas

corpus relief. And more importantly, the State’s argument is contrived.

The Ninth Circuit did not rely on its own precedent to refine Herring’s

principle into a rule this Court has not announced, or to assess the merits of

Mr. Frost's habeas corpus claim. Marshall v. Rodgers, 133 S.Ct. 1446, 1450

(2013) (per curiam) (citation omitted); Parker v. Matthews, 132 S.Ct. 2148,

2155 (2012). The court even noted that its opinions do not constitute clearly

established federal law. Frost IT, 757 F.3d at 916, n.1.

Instead, the single-sentence citation to two circuit cases applying

Herring to similar closing-argument restrictions served only as an example of

the clarity of Herring's principle, Frost IT, 757 F.3d at 916 (citing Miguel, 338

F.3d at 1000-03, and Conde, 198 F.3d at 739), and “merely reflect{ed] what has

been ‘clearly established” by this Court’s cases. Matthews, 132 S.Ct. at 2155.

The Ninth Circuit was explicit on this point. It quoted Herring that “[n]o

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.” Frost II, 757 F.3d at 916 (quoting Herring, 422

15

U.S. 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.” Herring, 422 U.S. at 863 (quoted in Frost IJ, 757 F.3d at 916). And

referring to Herring’s legal principle, the en banc opinion remarked, “For these

reasons, we have held that preventing a defendant from arguing a legitimate

defense theory constitutes structural error.” Frost II, 757 F.3d at 916 (citing

Miguel, 338 F.3d at 1000-03, and Conde, 198 F.3d at 739).

IV. The State Seeks Error Correction, and Its Argument Lacks Merit.

The State requests that the Court grant certiorari to correct what it

believes to be the Ninth Circuit’s erroneous conclusion that the Herring error

here was structural error. Taken on its own terms, the State’s request is for

“simple error correction,” which is net a reason for this Court to grant

certiorari. See Kyles v. Whitley, 514 U.S. 419, 422, n.1 (1995). The State’s

request is particularly inappropriate given that it was the Washington

Supreme Court that concluded the Herring violation lowered the prosecution’s

burden of proof. Frost I, 161 P.3d at 368. Consequently, the intrusion on state

prerogatives in this case is far lessened and the core reason for habeas is

present—to allow for new trials when previous trials were fundamentally

unfair.

16

Moreover, the State is simply wrong. In light of the long line of this

Court’s cases, violating the right to present a legitimate argument in

summation and lowering the prosecution’s burden of proof are structural

errors because they strike at the very framework of the adversarial justice

system and their effects cannot be measured.

A. The Sixth Amendment Right to Present Proper Argument

in Summation Is Clearly Established.

Herring v. New York recognized the right to present proper argument on

the evidence and applicable law in summation as one of the most fundamental

and enduring of the adversarial trial rights. 422 U.S. at 858-62.

Notwithstanding the clarity of Herring on this point, the State argues that the

right to present legitimate argument in summation is not clearly established

because the New York statute at issue in Herring foreclosed summation

altogether. Pet. at 16. The State believes that Herring's rationale for striking

the statute was dictum and Herring means only that the accused has the right

to say something in summation. The State has even argued that, under

Herring, a ten-second summation might be proper, and that Herring permits

the trial court to compel defense counsel to admit his client’s guilt in

17

summation and to preclude counsel from addressing a count entirely.’

1. The State ignores Herring’s legal principle. Herring did not limit

its holding to the complete preclusion of summation, as the State suggests,

although it did limit it to “final argument or summation” instead of “argument

at any other stage” of trial. Jd. at 863, n.13. Instead, Herring recognized the

defendant's broader right to be heard in summation “from the point of view

most favorable to him.” Jd. at 864. It is per se reversible error to deny this right,

Herring concluded, because it is essential to the framework of our adversarial

system of criminal justice, and because “there is no way to know whether . . .

appropriate arguments” would have affected the outcome. /d. at 864. This

reasoning was not dictum. It was an indispensable part of Herring’s rationale,

its holding.

Herring left “no doubt that closing argument for the defense is a basic

element of the adversary fact finding process in a criminal trial.” 422 U.S. at

858. It found “no aspect” of the adversarial process “could be more important

than the opportunity finally to marshal the evidence for each side before

submission of the case to judgment.” Jd. at 862.

at 31:00-32:10 (imiting cummetion roe one a 35: 20-36: 20 (10 — summation).

43:50-44:15 (admitting guilt).

18

“The Constitutional right of a defendant to be heard through counsel

necessarily includes his right to have his counsel make a proper argument on

the evidence and the applicable law in his favor, however simple, clear,

unimpeached, and conclusive the evidence may seem.” /d. at 860 (quoting

Yopp, 178 A.2d at 881) (emphasis added). “[T]he trial court has no discretion

to deny the accused such right.” Jd. (emphasis added).

The Herring Court took as self-evident that this “basic right of the

accused to make his defense[,|” 422 U.S. at 859, and in particular, to argue

reasonable doubt to the jury, was central to a fair trial. “[FJor 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.” Jd. at 862 (citing Winship,

397 U.S. 358).

Herring concluded that no right was more central to partisan advocacy,

the “very premise of our adversary system|,|” than the right to present proper

argument to the factfinder. Jd. at 860, 862. The right to argument dated back

to the Sixteenth Century “when notions of compulsory process, confrontation,

and counsel were in their infancy|.]” Jd. at 860. “Whatever other procedural

protections may have been lacking, there was no absence of debate on legal and

factual issues raised in a criminal case.” Jd.

19

The twenty-six state court cases Herring cited as “universally”

recognizing “the right to make a closing summation to the jury|,]” id. at 858,

n.8, reflect the breadth of the right. These cases consistently held that

depriving the defendant a legitimate argument—even where some argument

is permitted—violates the fundamental right to make a closing argument in

summation. In fact, only four of the twenty-six cases cited by Herring involved

the complete preclusion of summation. See id.‘

Several of the cases cited by Herring concerned the complete preclusion

of a legitimate defense theory in summation and held that completely barring

a legitimate defense theory is reversible error because denying the right to

present a proper defense theory is tantamount to denying the right to present

any argument at all.° These cases, like Herring, recognized that the trial court

4 Hall v. State, 160 So. 511 (Fla. 1935); Porter v. State, 65 S.E. 814 (Ga. Ct. App.

1909); Stewart v. Commonwealth, 11 A. 370 (Pa. 1887); Word v. Commonwealth, 30

Va. 743 (1827).

5 State v. Shedoudy, 118 P.2d 280, 285 (N.M. 1941) (conviction vacated because trial

court barred reasonable doubt argument); State v. Verry, 13 P. 838, 840 (Kan. 1887)

(trial court improperly limited defense from presenting a legitimate argument to the

jury in violation of the defendant’s right to “make a full defense” a “substantial and

constitutional right, which cannot be taken away.”); Lynch v. State, 9 Ind. 541, 1857

WL 3659, *1 (1857) (reversing summation limitation, noting “if it would be error to

prohibit counsel to argue a case at all, it was error in the Court below to refuse to

permit counsel to argue the legal branch of the case”).

20

retained discretion to curtail argument but no discretion to preclude a proper

defense theory. See, e.g., Verry, 13 P. at 840.

A majority of the cases Herring cited involved time limits on summation

and held that courts may regulate summation but cannot deny counsel a

“reasonable opportunity to make defense for their clients.” Yeldell, 14 So. at

572.6

6 State v. Ballenger, 24 S.E.2d 175 (S.C. 1943) (one-hour limit infringed on the

constitutional right “to be fully heard in his defence [sic] by himself or by his counsel

or by both” in a complex case) (citation omitted); People v. McMullen, 133 N.E. 328

(Ill. 1921) (thirty-five-minute time limit violated the right to “a reasonable

opportunity to discuss before the jury both the facts and the law of the case... . Any

limitation of the constitutional right which deprives a defendant of an opportunity to

have his counsel argue the law and the facts has always been regarded as error

requiring a new trial.”); State v. Mayo, 85 P. 251, 254 (Wash. 1906) (ninety-minute

limit reversed because in this complex capital case the limitation “was too restrictive

to allow a full and fair discussion of the facts of the case; and hence was a violation of

the defendant's constitutional rights.”); State v. Rogoway, 78 P. 987 (Or. 1904),

rehearing, 81 P. 234 (1905) (reversing a one-hour limit because it was “too restrictive

to permit full and fair discussion of the case” and because the Oregon constitution,

like the Sixth Amendment to the U.S. Constitution means “that the accused shall

have the right to be fully and fairly heard, or else it means nothing.”); State v. Tighe,

71 P. 3 (Mont. 1903); Yeldell v. State, 14 So. 570, 572 (Ala. 1894) (noting that judges

must be careful “to allow full and fair opportunity to counsel to present his client’s

defense.”); People v. Green, 34 P. 231 (Cal. 1893) (one-hour time limit reversed

because “it was impossible, fully and properly, to argue the case to the jury for the

defendant within one hour” and “a defendant being tried on a charge of felony has a

constitutional right to be fully heard in his defense by counsel, which it is not within

the discretionary power of the court to deny or abridge”); Wingo v. State, 62 Miss. 311,

1884 WL 3462, *3 (1884) (reversed one-hour summation limit because it abridged the

defendant’s “right to the time necessary for making his defense fully and fairly”);

State v. Hoyt, 47 Conn. 518, 1880 WL 2281, *13 (1880) (affirming four-hour time limit

because “there is no claim . . . that the time so allowed was insufficient for the

purposes of a full, fair and complete defense.”); Williams v. State, 60 Ga. 367, 1878

21

Like the cases it cited, Herring also recognized that courts may place

limitations on a closing argument, such as by requiring that it “not stray

unduly from the mark, or otherwise impede the fair and orderly conduct of the

trial.” 422 U.S. at 862. But nothing in Herring suggests that a trial judge may

foreclose a legitimate legal argument. Rather, even in a case that appears “to

be simple — open and shut — at the close of the evidence,” “there is no certain

way for a trial judge to identify accurately” whether “closing argument may

correct a premature misjudgment and avoid an otherwise erroneous verdict”

“until the judge has heard the closing summation of counsel.” Jd. at 863.

2. The State essentially argues that law is “clearly established” under

28 U.S.C. § 2254(d)(1) only in contexts factually identical to this Court’s cases.

This argument conflicts with how the Court determines clearly established

federal law.

This Court has instructed that “clearly established Federal law” for

WL 2652 (1878); Weaver v. State, 24 Ohio St. 584 (1874) (reversing five-hour time

limit noting “To allow insufficient time for argument is, practically and in principle,

equivalent to a denial of the right to argue the cause. To the full extent that the cause

was not argued for the want of time, the defendant was deprived of his defense, and

stands convicted without the aid of counsel.”) (citations omitted); State v. Page, 21

Mo. 257, 1855 WL 5300, *1 (1855) (affirming fifteen-minute limit in a simple case,

but noting “There are cases in which the time necessary to a proper and fair

elucidation of the matters involved in the prosecution, must be greater then and

others.”).

22

purposes of 28 U.S.C. § 2254(d)(1) “does not ‘require state and federal courts to

wait for some nearly identical factual pattern before a legal rule must be

applied.” Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (quoting Carey v.

Musladin, 549 U.S. 70, 81 (2006) (Kennedy, J., concurring in judgment)).

Rather, “Section 2254(d)(1) permits a federal court to grant habeas relief based

on the application of a governing legal principle to a set of facts different from

those of the case in which the principle was announced.” Lockyer v. Andrade,

538 U.S. 63, 76 (2003).

As this Court has explained, “clearly established Federal law under

§ 2254(d)(1) is the governing legal principle or principles set forth by the

Supreme Court at the time the state court renders its decision.” Andrade, 538

U.S. at 71-72 (emphasis added). These principles guide the Section 2254(d)(1)

analysis. See Abdul-Kabir v. Quarterman, 550 U.S. 233, 258 (2007) (“ignoring

the fundamental principles established by {the Supreme Court's] most relevant

precedents” may be contrary to or an unreasonable application of clearly

established federal law).

“Certain principles are fundamental enough that when new factual

permutations arise, the necessity to apply the earlier rule will be beyond

doubt.” Yarborough v. Alvarado, 541 U.S. 652, 666 (2004). The right to

participate fully and fairly in the adversary system by having counsel present

proper argument is just such a fundamental right. See Herring, 422 U.S. at

858, 862 (describing the right to have counsel make a proper argument in

summation as a “basic element of the adversary fact-finding process” and

beyond compare in importance to partisan advocacy, the “very premise of our

adversary system”).

This Court has repeatedly relied on the legal principles underlying this

Court’s cases in defining clearly established law. For example, in Thaler v.

Haynes, 559 U.S. 43, 47 (2010) (per curiam) this Court described Batson v.

Kentucky, 476 U.S. 79 (1986), as requiring “a judge ruling on an objection to a

peremptory challenge to undertake a sensitive inquiry into such

circumstantial and direct evidence of intent as may be available” instead of

Batson’s most narrow fact-bound holding—to overrule Swain v. Alabama, 380

U.S. 202 (1965), and hold that a defendant could establish a prima facie case

of discrimination in the use of a preemptory challenge. Jd. at 47 (internal

quotation marks omitted); Accord Bell v. Cone, 535 U.S. 685, 695-6 (2002) (legal

principle of United States v. Cronic, 466 U.S. 648, 659 (1984), includes its

discussion of three hypothetical denials of counsel in which prejudice would be

presumed, instead Cronic’s most limited facts: that giving a young

24

inexperienced lawyer 25 days to prepare for trial in a complex and grave case

was not per se denial of counsel); Yarborough v. Alvarado, 541 U.S. at 662

(citing as clearly established law a footnote from Berkemer v. McCarty, 468

U.S. 420, 422-3 (1984), that cited a New York State court decision finding an

objective custodial test preferable to a subjective one, instead of the most

limited holding of McCarty, that Miranda v. Arizona, 384 U.S. 436 (1966),

applied to misdemeanor offenses and that the roadside questioning of a

motorist did not constitute a custodial interrogation) (citing McCarty, 468 U.S.

at 442, n.35 (quoting People v. P., 21 N.Y.2d 1, 9-10 (1967))).

3. The State’s remaining arguments are quickly resolved. First,

Herring’s legal principle governs Mr. Frost’s case and does not require the

recognition of another implied right, as the State argues. Pet. at 15.

Consequently, the State’s reference to Kane v. Garcia Espitia, 546 U.S. 9

(2005), is misplaced. In Espitia, this Court found that the Sixth Amendment

right to self-representation does not encompass the right to adequate access to

a law library because the lead case, Faretta v. California, 422 U.S. 806 (1975),

“says nothing about any specific legal aid that the State owes a pro se criminal

defendant.” 546 U.S. at 10 (emphasis added). In contrast, Herring specifically

referred to summation as the last opportunity to convince the jury “there may

be reasonable doubt.” Herring, 422 U.S. at 862 (citing Winship, 397 U.S. 358).

And due process requires the court to hold the prosecution to its heavy burden

of proof beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 277-

78 (1993).

Nor did the Ninth Circuit opinion introduce a new rule “under the guise

of extensions to existing law.” White v. Woodall, 134 S.Ct. at 1706 (quoting

Alvardo, 541 U.S. at 666). The Ninth Circuit did not rely on a general principle,

but on Herring's more limited rule that it is structural error to deny the

defendant’s Sixth Amendment right to “make a proper argument on the

evidence and the applicable law in his favor.” Herring, 422 U.S. at 860.

B. The Ninth Circuit Opinion Is Consistent with this Court’s

Structural Error Case Law.

This Court has repeatedly referred to Herring error as structural error.

See Cone, 535 U.S. at 696 (including Herring among cases “where we found a

Sixth Amendment error without requiring a showing of prejudice.”); Cronic,

466 U.S. at 659, n.25 (listing Herring error as one “the Court has uniformly

found constitutional error without any showing of prejudice’).

Notwithstanding this Court’s repeated affirmations, the State argues this

Court should grant certiorari because the Ninth Circuit opinion “expands

structural error law” by finding Herring error structural. According to the

26

State, Herring never concluded that denying the defendant the right to make

a proper summation was “structural;” it only concluded it was error. Pet. at 21.

This question is not worthy of certiorari because the State is flat wrong.

1. Herring held thet denying the right to “make a proper argument

on the law and applicable law” was structural error. Herring, 422 U.S. at 860

(quoting Yopp, 178 A.2d at 881). Herring concluded that denying a legitimate

argument in summation struck at the very framework of the adversarial

system of criminal justice. Jd. at 862. Summation was a “basic element” of the

factfinding process and the most important expression of partisan advocacy,

“(t]he very premise of our adversary system of justice.” Jd. As Herring

explained, “no aspect” of the advocacy essential to that adversarial process

“could be more important than the opportunity finally to marshal the evidence

for each side before submission of the case to judgment.” Jd. at 862.

This Court has used similar language to describe structural error. See,

e.g., Rose v. Clark, 478 U.S. 570, 578 n. 6 (1986) (structural errors abort or deny

the basic trial process); Arizona v. Fulminante, 499 U.S. 279, 310 (1991)

(describing structural errors as ones that “affect|| the framework within which

the trial proceeds”). And in assessing whether an error is structural or subject

to harmless error review, this Court looks to see whether the defendant has

27

“received a full opportunity to put on evidence and make argument to support

his claim of innocence.” Clark, 478 U.S. at 579.

Herring’s conclusion that “[t]here is no way to know” whether

“appropriate arguments in summation might have affected the ultimate

judgment|,]” 422 U.S. at 864, is a hallmark of structural error. See Gonzalez-

Lopez, 548 U.S. at 149, n.4 (here, as we have done in the past, we rest our

conclusion of structural error upon the difficulty of assessing the effect of the

error.”) (citations omitted); Sullivan, 508 U.S. at 282 (defective reasonable-

doubt instruction produces “consequences that are necessarily unquantifiable

and indeterminate[.]”). And the fact that Herring vacated the conviction

without analyzing harm is also significant because, prior to Herring, this Court

had recognized that constitutional errors could be harmless. See Chapman v.

California, 386 U.S. 18 (1967). Cf. Hedgpeth v. Pulido, 555 U.S. 57, 60 (2008)

(noting that cases decided before Chapman had no reason to address whether

constitutional error could be harmless).

Finally, the fact that the state interfered with Mr. Frost’s Sixth

Amendment right to counsel reinforces that the violation is structural. In

Strickland v. Washington, this Court noted that “[i]n certain Sixth Amendment

contexts, prejudice is presumed [including] various kinds of state interference

with counsel's assistance. . . . such circumstances involve impairments of the

Sixth Amendment right that are easy to identify and, for that reason and

because the prosecution is directly responsible, easy for the government to

prevent.” 466 U.S. 668, 692 (1984).

Herring also recognized that state interference with counsel's

“opportunity to participate fully and fairly” constitutes Sixth Amendment

structural error. The right to assistance of counsel, Herring explained, “has

been understood to mean that there can be no restrictions upon the functioning

of counsel in defending a criminal prosecution.” 422 U.S. at 857. Herring relied

on Brooks v. Tennessee, 406 U.S. 605, 612-613 (1972), and Ferguson v. Georgia,

365 U.S. 570 (1961), which respectively struck down statutes that restricted

when counsel may call her client to testify or prevented defense counsel from

conducting a direct examination of her client at trial. Like Herring, these

limitations denied the accused the “guiding hand of counsel,” Powell v.

Alabama, 287 U.S. 45, 69 (1932) (quoted in Brooks, 406 U.S. at 613; Ferguson,

365 U.S. at 594-95), and were per se reversible error.

2. The State argues that the Ninth Circuit’s application of Herring

results in a “nebulous” rule that calls into question any number of convictions

where evidence was excluded or questioning was barred. Pet. at 22-3 (citing

29

Crane v. Kentucky, 476 U.S. 683 (1986) (harmless error applied to barring

evidence of coerced confession), and Delaware v. Van Ardall, 475 U.S. 673

(1986) (harmless error to refuse to permit counsel to question regarding deal

for key witness). This argument fails because Herring is limited to summation,

and not argument at any of point of trial. 422 U.S. at 863, n.13.

Nor did the Ninth Circuit expand the law when it found that compelling

Mr. Frost to concede guilt beyond a reasonable doubt was structural error. The

State’s argument to the contrary relies exclusively on cases that apply

harmless error analysis to erroneous jury instructions based on the

assumption that the trial was fundamentally fair and a reliable vehicle for

determining guilt. Pet. at 18, n.4. (citing Neder v. United States, 527 U.S. 1, 9-

10 (1999); Yates v. Evatt, 500 U.S. 391 (1991); Carella v. California, 491 U.S.

263 (1989); Pope v. Illinois, 481 U.S. 497 (1987); Washington v. Recuenco, 548

U.S. 212 (2006)).

In contrast, and what was denied in this case, permitting defense counsel

to challenge the sufficiency of the prosecution’s evidence before the jury is a

basic protection that is indispensable to the trial’s fundamental fairness and

reliability. See, e.g., Clark, 478 U.S. at 578 (“Harmless-error analysis thus

presupposes a trial, at which the defendant, represented by counsel, may

present evidence and argument before an impartial judge and jury.”)

(emphasis added); Neder, 527 U.S. at 8-9 (structural errors “deprive

defendants of ‘basic protections’ without which ‘a criminal trial cannot reliably

serve its function as a vehicle for determination of guilt or innocence . . . and

no criminal punishment may be regarded as fundamentally fair.”) (quoting

Clark, at 577-78). Denying this right lowered the prosecution’s burden of proof,

Frost I, 161 P.3d at 368, and rendered the trial fundamentally unfair.

The error, here, did not concern a single missing element from a jury

instruction or an erroneous permissive inference. Rather, Mr. Frost’s counsel

was ordered to concede guilt on each and every element of the offenses. See

Herrera v. Collins, 506 U.S. 390, 398 (1993) (noting the defendant's due process

right to insist that guilt be proven beyond a reasonable doubt) (citing Winship,

397 U.S. 358). “[E]ven when no theory of defense is available, if the decision to

stand trial has been made, counsel must hold the prosecution to its heavy

burden of proof beyond reasonable doubt.” Cronic, 466 U.S. at 657.

C. The Ninth Circuit Opinion Does Not Conflict with a

Federal Due Process Case or State Affirmative Defense

Law.

The State claims the Ninth Circuit decision here “essentially held” that

due process prohibits ever requiring the defendant to choose between

31

reasonable doubt and an affirmative defense, even when state law requires it.

Pet. at 19. This holding, the State argues, conflicts with dictum from United

States v. Russell, 411 U.S. 423 (1973), that an entrapment defense is not of a

constitutional dimension, id. at 433, and the law in several states requiring

defendants to admit an offense before claiming an entrapment defense, see Pet.

at 17 (citing cases), as well as a circuit court decision upholding one such law

against a due process challenge. See Eaglin v. Welborn, 57 F.3d 496 (7th Cir.

1995) (en banc). This argument is unworthy of certiorari because the Ninth

Circuit’s en banc decision contains no such holding.

The Washington Supreme Court concluded that the trial court’s error,

not state affirmative defense law, cost Mr. Frost his right to challenge the

sufficiency of the evidence in summation and lowered the prosecution’s burden

of proof. Frost J, 757 F.3d at 368 (citing Winship, 397 U.S. at 364). Washington

law entitled Mr. Frost to argue that he acted under duress and the prosecution

failed to prove that he participated in his accomplices’ criminal acts “with

adequate knowledge of promotion or facilitation.” Frost I, 161 P.3d at 368. This

decision bound the Ninth Circuit. See Bradshaw v. Rickey, 546 U.S. 74, 76

(2005) (“a state court’s interpretation of state law, including one announced on

direct appeal, binds a federal court sitting in habeas corpus”).

32

For this reason, the State’s reliance on Eaglin v. Welborn, 57 F.3d 496

(7th Cir. 1995) (en banc), is misplaced. Eaglin concerned a due process

challenge to an Illinois common law rule that barred the defendant from

pleading entrapment without admitting the actus reus (but not the mens rea)

of the offense. Id. at 498. The Seventh Circuit concluded the rule did not violate

due process because entrapment was not a federally-guaranteed defense,

leaving Illinois “free within extremely broad limits to decide upon the elements

of a crime.” Id. at 500. The court cautioned, however, that once a state defines

the elements of an offense, “it may not convict without proof beyond a

reasonable doubt that every element was present[.]” /d. (citing Winship, 397

U.S. at 364.) See also Patterson v. New York, 432 U.S. 197, 211, n.11 (1977)

(‘The applicability of the reasonable-doubt standard, however, has always

been dependent on how a State defines the offense that is charged in any given

case.”).

In this case, the prosecution was required to prove every element of

accessorial liability beyond a reasonable doubt. Kaglin, 57 F.3d at 500 (citing

Winship, 397 U.S. at 364). “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.” Frost IJ, 757 F.3d at

33

914 (quoting Frost I, 161 P.3d at 368). Precluding Mr. Frost from challenging

the prosecution’s proof beyond a reasonable doubt, while leaving the

prosecution free to present whatever arguments it wanted, was a far more

egregious affront to the adversary system of criminal justice than Herring's

equal denial of summation to both parties because it struck at the presumption

of innocence. Frost IT, 757 F.3d at 916.

Given the lack of conflict with this Court’s opinions, and absence of a

circuit split or conflict with any state court of last resort, the petition is simply

a request for this Court to correct what the State perceives to be an erroneous

decision. This Court should deny certiorari not only because this Court is not

primarily a court of error correction, see S. Ct. Rule 10, but also because the

Ninth Circuit’s decision was correct.

The State’s argument that Herring means nothing more than that the

accused has a right to say something in summation betrays Herring’s true and

stated purpose: to vindicate the defendant’s Sixth Amendment right to

participate “fully and fairly” in the adversary proceeding. 422 U.S. at 858. A

ten-second summation’ and the complete preclusion of a proper defense theory

in summation simply cannot be squared with Herring’s recognition of the “right

7 See page 18, footnote 3, supra.

34

to present proper argument on the evidence and law in his favor.” 422 U.S. at

859 (quoting Yopp, 178 A.2d at 881).

CONCLUSION

For these reasons, this Court should deny the petition for certiorari.

Respectfully submitted,

ERIK B. LEVIN

Counsel of Record

LISSA W. SHOOK

Law Office of Erik B. Levin

2001 Stuart Street

Berkeley, California 94703

(510) 978-4778

erik@erikblevin.com

September 29, 2014

35

APPENDIX

Description Page

Excerpt of Verbatim Report of Proceedings

December 11, 2003 (prosecution rebuttal summation)

State of Washington v. Joshua Frost,

Superior Court Cause No. 03-1-01034-7KNT..............cccccseeeeceeceeeneneeeeeeres 2a

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UPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF KING

Plaintiff,

NO. 03-1-01034-7KNT

COA NO. 53767-9-L

ORIGINAL

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VERBATIM REPORT OF PROCEEDINGS

BEFORE THE HONORABLE CATHERINE SHAFFER, JUDGE

KING COUNTY SUPERIOR COURT

KENT, WASHINGTON

DECEMBER 11, 2003

APPEARANCES :

FOR THE PLAINTIFF: ZACH WAGNILD

DEPUTY PROSECUTING ATTORNEY

FOR THE DEFENDANT:

OFFICIAL COURT REPORTER

VICTORIA RACCAGNO ENT,

2a

assault. He had nothing to do with assaulting anyone

and as to Kurt Sears nobody assaulted him. I hope

those will be the verdicts you reach. And you will

have to struggle with it, I know, because it is a

painful case. But the particular focus I believe is

the special verdicts, not armed with a firearm.

Joshua Frost asks you -- it asks you was Joshua Frost

armed with a firearm. The answer should be no on all

of those. Thanks.

THE COURT: Thank you very much, Mr. Stimmel.

Ladies and gentlemen, once again the state has the

opportunity to address you on rebuttal. Please give

your attention to Mr. Wagnild on behalf of the state.

MR. WAGNILD: Thank you very much, your Honor.

Ladies and gentlemen, noticeably absent from Mr.

Stimmel's closing argument is reference to the law.

There is a reason for that. Because if Mr. Stimmel

had pointed you to the law and pointed to the elements

of the offenses and he pointed to the firearm

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,

He starts out by saying, well, we will throw you a

bone, we will give you the Gapp robberies. Why? They

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are just so bad that you would have a hard time

finding him not guilty. For the life of me I don't

understand that argument. You don't find someone

guilty because the crime is so bad that you just have

to punish someone. I am not asking you to do that. I

am asking you to find Mr. Frost guilty because he took

part in this robbery because he was an accomplice to

this robbery, that is why he is guilty, not because

Mr. and Mrs. Gapp are elderly, not because Mr. Gapp’s

rib was broken, not because Mrs. Gapp was hit in the

face. You will find him guilty because he was

involved.

And somehow, somehow Mr. Stimmel then tries to

separate out the Gapp robbery from the rest of them.

But there is no difference here. I mean, sure, he

went in during the Gapp robbery, but the rest of them

he was simply the driver. He was involved. His role

changed. Whereas Mr. Williams and Alexander Shelton’s

roles stay the same and Mr. Frost's role changed, that

doesn’t make him any less guilty. He is no different.

And then he asks you not to find him guilty of the

burglary charge? Why? Not for any legal reason.

Just because, you know, it is not really what the

intent was.

Look at the jury instructions. Just look at the

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elements of burglary in the first degree. Of course

that was their intent. They unlawfully entered. They

assaulted somebody. They unlawfully entered the house

with an intent to commit a crime. That is what I need

to prove. He raises the issue of whether or not I am

trying to say that Mr. Frost was in the 7/Eleven store

and the Ronnie's Market store. Quite frankly, I just

don't know. We just can't tell. There is an

interesting argument to be made there. First of all,

we know that Alexander Shelton wears glasses, and when

you look either at the video or you look at the

pictures, say from the 7/Eleven robbery, it is

difficult to see any glasses. They are not the

clearest pictures but it is difficult to see glasses

on the subject on the one that is not the

African-American male.

We also know that Mr. Frost does an exceptional

job of trying to minimize his involvement. So it

would be quite likely that he would say he drove in

all of them and, in fact, he was involved. We also

know that Eddy Shaw, who knows these individuals,

looked at him and immediately recognized this to be

someone who looks just like Mr. Frost. Was it

Mr. Frost who entered the stores? I just don’t know.

It could be. Might not be. But it doesn’t really

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matter for the purposes of finding him guilty, because

even if it wasn't him who went into the stores, we

know it was him that drove them and then drove away.

So we know he was an accomplice, we just don't know if

he was the person that went inside.

And, finally, I want to talk about firearms

enhancement, these special verdict forms, because Mr.

Stimmel dedicated a lot of his closing to that. He

says at one point that he is trying -~ they want to

divorce themselves from the guns. Well, I have got

news for the defense, it is too late for that. If

Mr. Frost wanted to divorce himself from the guns you

don't do it at trial. You do it when your accomplices

are pulling out loaded firearms and heading into

stores to rob them, that is when you divorce yourself

from guns. It is too late. Mr. Frost is already

bound to those guns. He tells you that he wants you

to exonerate his client on the firearm enhancement and

yet not once does he say, hey, why don't you look at

instruction number 34. If you look at instruction 34

at the very bottom it says if one participates in a

crime armed with a firearm all accomplices to that who

participated in the crime charged are deemed to be so

armed even if only one firearm is involved. As long

as Mr. Frost is an accomplice to these robberies and

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as long as one other participant is armed with a

firearm, he is, too. That is what the law is. All I

am asking you to do is follow the law.

Mr. Stimmel has simply pointed you to one reason

why you shouldn’t just simply follow the law on that.

The answer is you should. That is what we are here

for.

We talked about this in jury selection. Some of

it you may not be sure you completely agree with it,

but the fact is what we are here to do is look at the

facts and apply it to the law. The law is clear, if

one participant was involved with carrying a firearm,

they all are.

Ladies and gentlemen, I am not asking you to find

Mr. Frost guilty because these were violent crimes, I

am not asking to you find him guilty because the Gapps

are old, I am not asking you to find him guilty

because someone was shot. I am asking you to find Mr.

Frost guilty because he is guilty, because he was an

accomplice to every one of the crimes charged. Thank

you very much.

THE COURT: Thank you very much, Mr. Wagnild. All

_ right, ladies and gentlemen. We have got a little

more business with you this point, and our first order

of business with you since you have all patiently

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