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

No. 14-95

<—_———_<*_«_ —E>E

In the Supreme Court of the United States

PATRICK GLEBE,

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 OF THE STATES OF ARIZONA, ET AL.,

AS AMICI CURIAE SUPPORTING PETITIONER

Thomas C. Horne

Arizona Attorney General

Robert L. Ellman

Solicitor General

Jeffrey A. Zick

Chief Counsel

Laura P. Chiasson*

Assistant Attorney General

400 West Congress, Bldg. S-315

Tucson, AZ 85701

Phone (520) 628-6520

Laura.Chiasson@azag.gov

*Counsel of Record

Counsel for Amici Curiae

(additional counsel listed on inside cover)

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

John W. Suthers

Attorney General

State of Colorado

Lawrence G. Wasden

Attorney General

State of Idaho

Gregory F. Zoeller

Attorney General

State of Indiana

Thomas J. Miller

Attorney General

State of Iowa

Derek Schmidt

Attorney General

State of Kansas

Timothy C. Fox

Attorney General

State of Montana

Jon Bruning

Attorney General

State of Nebraska

Wayne Stenehjem

Attorney General

State of North Dakota

Ellen F. Rosenblum

Attorney General

State of Oregon

Robert E. Cooper, Jr.

Attorney General

State of Tennessee

Greg Abbott

Attorney General

State of Texas

J.B. Van Hollen

Attorney General

State of Wisconsin

Peter K. Michael

Attorney General

State of Wyoming

i

QUESTION PRESENTED

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

clearly establish that a limitation on closing argument

is structural error, as the Ninth Circuit held here, or,

as many other courts have held, does Herring allow the

possibility that such a limitation is subject to harmless

error review?

se

TABLE OF CONTENTS

QUESTION PRESENTED ...................:. i

TABLE OF AUTHORITIES .................. Iv

INTEREST OF AMICI CURIAE ............... 1

DET ccntebaredceevectevesceevaitenss 1

SUMMARY OF ARGUMENT .................. 3

PEE cn ob cee eneensa cewe Se eeennsecess 4

I. This Court has never “clearly established” that

a trial court violates a defendant’s due process

rights by requiring him to admit the elements of

an offense before asserting an affirmative

defense; it could not, therefore, have held that

such a procedure is structural error .......... 6

A. State courts around the nation have held

that defendants can be put to the choice of

admitting the elements of the offense or

asserting an affirmative defense .......... 7

B. The State’s burden was not lessened by

Frost’s choice to admit the elements and

present a duress defense ............... 11

C. A State may require a defendant to bear the

burden to prove an affirmative defense .... 13

D. A defendant does not have a

constitutional right to argue inconsistent

a ee 15

ill

II. The Ninth Circuit improperly extended Herring

and relied on its own circuit precedent to find

that any error was structural . ............ 17

A. The en banc panel improperly extended

Herring to conclude that structural error

B. The en banc panel improperly relied on its

own circuit precedent in finding clearly

EE on oe ose eae eases cones 21

C. AEDPA precludes habeas relief where, as

here, fairminded jurists could disagree as to

the correctness of the state court decision . 22

CONCLUSION .......... er re Pe Ta 23

iv

TABLE OF AUTHORITIES

CASES

Arcoren v. United States,

929 F.2d 1235 (8th Cir. 1991) ......... =>

Arizona vu. Fulminante,

Ee ee e 22

Beets v. Commonwealth,

437 S.W.2d 493 (Ky. 1968) ...... Scere cay ke aia 10

Biggs v. Sec’y of Cal. Dep’t Corr. & Rehab.,

717 F.3d 678 (Sth Cir. 2013) ....... wccceee. 1

Burt v. Titlow,

ee Dee pabee deed 5

Florida v. Nixon,

543 U.S. 175 (2004) ... ....... 5 ia: ~

Harrington v. Richter,

es Oe, SEED 6 cw wecessnce 17, 20, 22, 23

Herring v. New York,

ES a ee passim

Hicks v. State,

695 S.E.2d 195 (Ga. 2010) .................. i)

Hopson v. State,

625 So.2d 395 (Miss. 1993) ... . ........... 8)

Johnson v. United States,

426 F.2d 651 (D.C. Cir. 1970) .... ......... 16

Johnson v. Williams,

133 S. Ct. 1088 (2013) ... ... . et <:

Marshall v. Rodgers,

I I OE ae aoe 21

Mathews v. United States,

ee ews 7, 8,15

Melendez v. State,

511 N.E.2d 454 (Ind. 1987) ................. 9

Metrish v. Lancaster,

BR ee ee 5,6

Mullaney v. Wilbur,

et EE ccc cecceeseeeess 4,14

Nevada v. Jackson,

133 S. Ct. 1990 (2013) . .. ... .. . 5

Olarte v. State,

614 S.E.2d 213 (Ga. Ct. App. 2005).......... 10

Patterson v. New York,

oo 6d § eewae wéeeaeee 13, 14

People v. Arndt,

814 N.E.2d 980 (Ill. App. Ct. 2004)... .... ...9

People v. Cooper,

606 N.E.2d 705 (Ill. App. Ct. 1992) ..... ‘on ae

People v. Dupree,

788 N.W.2d 399 (Mich. 2010) . .... . ....9

People v. Frye,

10 Cal. Rptr. 2d 217 (Cal. Ct. App. 1992) ...... 8

People v. Garcia,

826 P.2d 1259 (Colo. 1992) ... ... » «a

vi

People v. Pickering,

276 P.3d 553 (Colo. 2011) .............220.. 8

Ray v. State,

383 S.E.2d 364 (Ga. Ct. App. 1989). ..... en

Rodriguez v. State,

368 S.W.3d 821 (Tex. App. 2012) ......... 9,10

Smith v. United States,

| &. a, | ree : . 13

State v. Heinz,

473 A.2d 1242 (Conn. App. Ct. 1984) ........ 10

State v. Nilsen,

657 P.2d 419 (Ariz. 1983) . sad a On

State v. Person,

673 A.2d 463 (Conn. 1996) ........... 16

State v. Rhodes,

590 N.E.2d 261 (Ohio 1992) .............. .9

State v. Soule,

ee er, PED oepescteeeevsss ses 8

Sullivan v. Louisiana,

Dy Cs PEMD cc ceccccoesoesece 4,12,13

Taylor v. Withrow,

288 F.3d 846 (6th Cir. 2002) ............... 15

United States v. Gaudin,

ee EE POE nc cc cccescccosse 4,12,13

United States v. Houston,

481 Fed.Appx. 188 (5th Cir. 2012) ........... 2

United States v. Russell,

411 U.S. 423(1973) ... . sie’ sad sews 4

United States v. Trujillo,

390 F.3d 1267 (10th Cir. 2004) ............. 16

Washington v. Recuenco,

4 ee 22

Weaver v. State,

3 S.W.3d323 (Ark. 1999) ...... ccc cccccccees 8

White v. Woodall,

134 S. Ct. 1697 (2014) ............ 5, 20, 21, 22

In re Winship,

397 U.S. 358 (1970) ... ........... 3, 4,11, 13

Yarborough v. Alvarado,

i CaCI «5 cco coesovcscesseves 20

STATUTES

BO END cee seccnvscvcccees passim

1

INTEREST OF AMICI CURIAE’

The amici States have a strong interest in ensuring

the finality of the convictions obtained in their states

and in the consistent application of the deferential

standard of review Congress imposed in the

Antiterrorism and Effective Death Penalty Act

(AEDPA). By looking to its own precedent and

extending rules announced by this Court to determine

“clearly established Federal law,” the Ninth Circuit

threatens both of these concerns and grants habeas

relief in contradiction to AEDPA’s deferential

standards. 28 U.S.C. § 2254(d)(1) Unless the Court

grants review, the law in the Ninth Circuit will remain

that a State commits structural error by defining (as

many states do) an affirmative defense to require the

admission of the elements of the offense. See Biggs v.

Sec’y of Cal. Dep’t Corr. & Rehab., 717 F.3d 678, 690

(9th Cir. 2013) (Courts in the Ninth Circuit are “bound

to respect a panel holding that [a rule] is clearly

established Supreme Court law in a given context, just

like [they] would be bound to respect any other panel

holding.”).

STATEMENT

Frost was charged with several counts of burglary,

robbery and assault. (Pet. at 5.) At trial, he admitted

his involvement in most of the crimes, but asserted

* Counsel of record received timely notice of the States’ intent to

file this amicus curiae brief ten days before the due date.

Pursuant to Rule 37.4, the consent of the parties is not required for

the States to file this brief.

2

duress as an affirmative defense.” (Pet. at 5-6.) The

trial court informed Frost’s counsel that if he argued in

closing that the State had not met its burden to prove

the elements of the offenses for which he was claiming

duress, it would not instruct the jury on that defense.

(See Pet. App. at 146a (trial court stating, “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.”). Frost’s counsel chose

to argue that Frost committed the offenses under

duress, and he did not challenge the State’s proof on

the elements of the offenses.

The Washington Supreme Court held that Frost

should have been permitted under state law to argue

both that he did not commit the offenses and that he

committed them under duress. (See Pet. App. at 124a

(“[T)his court did not hold [in an earlier case] that such

inconsistent defenses would have been impermissible

had defense counsel sought to raise them.”) The court

further held that the trial court violated Frost’s Sixth

and Fourteenth Amendment rights by requiring the

defense to choose only one of the two conflicting

defenses to argue. (Pet. App. at 126a.) It held, however,

that the error was harmless and affirmed Frost’s

convictions. (Pet. App. at 128a—133a.) Both the

* An affirmative defense typically requires a defendant to admit

that he has committed an offense, but allows him to present

evidence showing why he is not culpable—ie., he was entrapped

or under duress when he committed the offense. Affirmative

defenses are “in the nature of confession and avoidance—

essentially admitting the crime, but proffering a reason why the

defendant should not be found guilty.” United States v. Houston,

481 Fed.Appx. 188, 192 n.3 (5th Cir. 2012) (mem.).

3

district court and the three-judge Ninth Circuit panel

agreed that any error was harmless and denied relief

to Frost. (Pet. App. at 92a—105a; 63a—64a.) Neither

court found it necessary to consider whether the state

court properly found that Frost’s constitutional rights

had been violated. (Pet. App. at 63a—64a, 91a n.3.)

On en banc review, the Ninth Circuit held that “the

Washington Supreme Court correctly concluded [that]

the state trial court unconstitutionally precluded

defense counsel from arguing reasonable doubt, under

both Herring and Winship.™ (Pet. App. at 8a.) The en

banc panel agreed that the trial court violated Frost’s

due process rights, but held that the Washington

Supreme Court’s conclusion that the error was subject

to harmless error review was “contrary to clearly

established Federal law.” Instead, finding that Herring

and Winship “clearly established” that the error was

structural, the en banc panel granted habeas relief to

Frost. (See Pet. App. at 17a—18a.)

SUMMARY OF ARGUMENT

Once again, the Ninth Circuit has failed to accord

the proper deference to a state court’s ruling on habeas

review. Such deference requires that a federal court

may not grant relief to a habeas petitioner unless the

state court’s ruling “was contrary to, or involved an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States.” 28 U.S.C § 2254(d(1). This Court has never

held that any error, let alone structural error, results

when a State requires (as many do) that a defendant

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

4

admit the elements of an offense before asserting an

affirmative defense. Nevertheless, the Ninth Circuit

held that such a procedure lessens the State’s burden

to demonstrate each element of an offense beyond a

reasonable doubt, and improperly shifts the burden of

proof to the defendant to prove the affirmative defense,

in violation of Winship, United States v. Gaudin, 515

U.S. 506 (1995), Sullivan v. Louisiana, 508 U.S. 275

(1993), and Mullaney v. Wilbur, 421 U.S. 684 (1975).

None of these cases, however, clearly establishes that

any improper burden shifting results from a State’s

requirement that a defendant admit the elements of an

offense before asserting an affirmative defense.

The en banc panel also improperly expanded this

Court’s ruling in Herring, which holds that the

complete denial of closing argument is structural error,

to apply when a defendant makes a closing argument

but is foreclosed from arguing inconsistent defenses.

Even if this Court ultimately agreed with the Ninth

Circuit that such a requirement violates a defendant’s

constitutional rights, it has not yet “clearly established”

such a rule, and the Ninth Circuit’s grant of habeas

relief failed to accord the proper deference to the

Washington Supreme Court’s finding that such an

error can be harmless.

ARGUMENT

Affirmative defenses are not of “constitutional

dimension” and therefore “Congress [and the states]

may ... adopt any substantive definition of the defense

that it may find desirable.” United States v. Russell,

411 U.S. 423, 433 (1973) (considering the defense of

entrapment). The en banc panel held both that (1) a

due process violation results from requiring a

5

defendant to admit the elements of an offense before

presenting an affirmative defense and requiring him to

argue consistent with this defense; and (2) the law is

clearly established that this error is structural,

requiring reversal. It could reach these conclusions,

however, only by improperly extending this Court’s

precedent and relying on its own circuit precedent. In

so doing, the en banc panel failed to accord deference to

the Washington Supreme Court’s finding that any error

was amenable to harmless error review.

That failure warrants this Court’s intervention.

AEDPA permits a federal court to grant habeas relief

to a defendant who has been convicted in state court if

the state court decision “was contrary to, or involved an

unreasonable application of, clearly established Federal

law, as determined by” this Court. 28 U.S.C.

§ 2254(d)(1). This standard is highly deferential to

state court decisions, and this Court has repeatedly

rebuked the lower courts when they failed to apply this

“demanding standard” of deference. Metrish ov.

Lancaster, 133 S. Ct. 1781, 1784 (2013). Most recently,

just 6 days before the Ninth Circuit issued its ruling in

this case, this Court chided the Sixth Circuit for

“disregard[ing] the limitations of 28 U.S.C.

§ 2254(d)—a provision of law that some federal judges

find too confining, but that all federal judges must

obey.” White v. Woodall, 134 S. Ct. 1697, 1701 (2014);

see also Burt v. Titlow, 134 S. Ct. 10, 17 (2013) (“[T]he

Sixth Circuit improperly set aside a reasonable state-

court determination of fact in favor of its own debatable

interpretation of the record.” (internal quotation marks

and alteration omitted)); Nevada v. Jackson, 133 S. Ct.

1990, 1994 (2013) (“In ... collapsing the distinction

between an unreasonable application of federal law and

6

what a lower court believes to be an incorrect or

erroneous application of federal law, the Ninth Circuit’s

approach would defeat the substantial deference that

AEDPA requires.” (Internal quotation marks and

citation omitted); Lancaster, 133 S. Ct. at 1792

(reversing the Sixth Circuit’s grant of habeas relief

because “[flairminded jurists could conclude that [the]

state supreme court decision ... is not unexpected and

indefensible by reference to existing law.” (Internal

quotation marks and alteration omitted)); Johnson v.

Williams, 133 S. Ct. 1088, 1094 (2013) (“[T]he Ninth

Circuit declined to apply the deferential standard of

review contained in § 2254(d).”).

Here, the Ninth Circuit relied on its own precedent

and improperly extended this Court’s holding in

Herring v. New York, 422 U.S. 853 (1975), to find a

“clearly established” rule on an issue this Court has

never addressed, let alone held: that a trial court

commits structural error by requiring a defendant to

admit the elements of an offense before presenting an

affirmative defense. That flouting of the limits

Congress imposed in AEDPA should not stand.

I. This Court has never “clearly established”

that a trial court violates a defendant’s due

process rights by requiring him to admit the

elements of an offense before asserting an

affirmative defense; it could not, therefore,

have held that such a procedure is structural

error.

As noted above, the trial court required Frost to

choose between arguing that the State had not proven

the elements of the offenses beyond reasonable doubt,

or admitting the offenses and asserting that he

7

committed them under duress. (Pet. App. at 146a.)

While the Washington Supreme Court found this to be

error, many states adopt the procedure used by the

trial court, and this Court has never held that this

procedure violates a defendant’s due process rights. It

could not, therefore, have “clearly established” that this

procedure is structural error.

A. State courts around the nation have held that

defendants can be put to the choice of admitting

the elements of the offense or asserting an

affirmative defense.

Although substantive federal criminal law does not

require a defendant to admit the elements of the

offense before he may assert an affirmative defense,

many states have chosen to impose that requirement.

Interpreting a federal statute, this Court held that,

“even if the defendant denies one or more elements of

the crime, he is entitled to an entrapment instruction

whenever there is sufficient evidence from which a

reasonable jury could find entrapment.” Mathews v.

United States, 485 U.S. 58, 62 (1988). The States are

not required to follow suit, however, but are free to

define affirmative defenses as they see fit. As a

Georgia appellate court explained, “the Mathews court

did not recognize an entitlement to instructions on

inconsistent affirmative defenses as a matter of

constitutional dimension, but rather merely resolved

the issue in federal courts under federal rules of

criminal procedure.” Ray v. State, 383 S.E.2d 364, 366

(Ga. Ct. App. 1989) (internal citation omitted)

In fact, the federal rule (and that adopted by the

Washington Supreme Court) permitting a defendant to

argue both that he did not commit a crime and that he

8

was justified in committing it (i.e. he was entrapped or

under duress) may “encourage perjury, lead to jury

confusion, and subvert the truth-finding function of the

trial.” Mathews, 485 U.S. at 65. The Arizona Supreme

Court concluded it would not follow Mathews for that

very reason:

When a defendant testifies that he did not

commit the elements of the offense charged, the

entrapment defense is not a plausible alternate

legal theory of the case. Entrapment is a proper

defense under these circumstances only if the

accused is lying. We do not believe that the

defendant has a right to lie at trial or a right to

solicit his attorney’s aid in executing such a

defense strategy.... Requiring a trial court to

entertain an entrapment defense when the

defendant has not admitted all elements of the

crime does not serve the cause of criminal justice.

State v. Soule, 811 P.2d 1071, 1074 (Ariz. 1991)

(emphasis added; internal citations omitted)

Many other states also require a defendant to admit

the elements of an offense before asserting an

affirmative defense. See, e.g., Weaver v. State, 3S.W.3d

323, 325 (Ark. 1999) (“Our law is well established that,

if a defendant denies committing an offense, he cannot

assert that he was entrapped into committing the

offense.”); People v. Frye, 10 Cal. Rptr. 2d 217, 223 (Cal.

Ct. App. 1992) (“{Aln affirmative defense is one which

presumes the prima facie elements of the crime are

true, but exculpates the defendant because of excuse or

justification.”); People v. Pickering, 276 P.3d 553, 555

(Colo. 2011) (“[Alffirmative’ defenses ... admit the

defendant’s commission of the elements of the charged

9

act, but seek to justify, excuse, or mitigate the

commission of the act.”); Hicks v. State, 695 S.E.2d 195,

197 (Ga. 2010) (“Each of these affirmative defenses

requires that the defendant admit the crime before he

can raise such defense.” (Internal quotation marks

omitted)); People v. Arndt, 814 N.E.2d 980, 990 (Ill.

App. Ct. 2004) (“[T]he entrapment defense is not

available to a defendant who denies any of the facts

constituting the offense charged, including the

requisite mental state.”); Melendez v. State, 511 N.E.2d

454, 457 (Ind. 1987) (“An affirmative defense admits all

the elements of the crime but proves circumstances

which excuse the defendant from culpability.”); People

v. Dupree, 788 N.W.2d 399, 405 n.11 (Mich. 2010) (“An

affirmative defense admits the crime but seeks to

excuse or justify its commission.”); Hopson v. State, 625

So.2d 395, 399 (Miss. 1993) (“[T]he well-established

rule in Mississippi [is] that in order for one to use the

affirmative defense of entrapment, one must admit

that he or she committed the alleged offense.”); State v.

Rhodes, 590 N.E.2d 261, 269 (Ohio 1992) (“[AJn

affirmative defense is in the nature of a ‘confession and

avoidance,’ in which the defendant admits the elements

of the crime, but seeks to prove some additional fact

that absolves the defendant of guilt.”); Rodriguez v.

State, 368 S.W.3d 821, 825 (Tex. App. 2012) (“A

defendant’s failure to testify, stipulate, or otherwise

proffer defensive evidence admitting that he engaged

in the proscribed conduct prevents the defendant from

benefitting from the defense of duress.” (Internal

quotation marks omitted)).

Some states withhold an instruction on an

affirmative defense if the defendant does not

affirmatively admit the elements of the offense. See,

10

e.g., State v. Nilsen, 657 P.2d 419, 420 (Ariz. 1983)

(trial court erred in giving entrapment instruction

where defendant “sat mute and made no active

admission of the elements of the offense”); State v.

Heinz, 473 A.2d 1242, 1247 (Conn. App. Ct. 1984) (“At

no time did the defendant in this case admit that he

committed the act charged. Thus, he was not entitled

to an [affirmative defense instruction].”); Olarte v.

State, 614 S.E.2d 213, 217 (Ga. Ct. App. 2005) (“[T]o

establish an evidentiary foundation for an instruction

on an affirmative defense, the defendant must admit to

the crime charged.” (Internal quotation marks

omitted)); Beets v. Commonwealth, 437 S.W.2d 493, 496

(Ky. 1968) (“[An affirmative defense] instruction is not

warranted except where the defendant admits the

commission of the act charged against him but seeks to

excuse or justify its commission.”); Rodriguez, 368

S.W.3d at 825 (“Because appellant failed to testify,

stipulate, or otherwise proffer defensive evidence

admitting his commission of the underlying offense, we

conclude that he was not entitled to a jury instruction

on the affirmative defense of duress.”).

Even though this Court has never held that a State

violates a defendant’s constitutional rights by requiring

him to admit the elements of an offense before

presenting an affirmative defense, the en banc panel

here held that “the trial court violated Frost’s due

process rights under a long line of clearly established

Supreme Court precedent.” (Pet. App. at 15a (emphasis

added).) That “precedent,” the en banc panel held,

established that Frost “was deprived of his right to

demand that a jury find him guilty of all the elements

of the crime(s]” and improperly shifted the burden of

proof to Frost to prove the affirmative defense. As

11

discussed below, however, this Court has never “clearly

established” that an affirmative defense violates a

defendant’s constitutional rights in these ways, let

alone that structural error would result.

B. The State’s burden was rot lessened by Frost’s

choice to admit the elemen.:s and present a duress

defense.

This Court has held that the prosecution must prove

every element of an offense beyond a reasonable doubt.

Winship, 397 U.S. at 364. But it has never held that

this requirement is violated when a defendant must

choose between contesting that he committed the

offense and asserting an affirmative defense that is

predicated on his commission of the offense. The en

banc panel held that the trial court’s requirement that

Frost argue consistently with his chosen duress defense

“forcled) defense counsel to concede guilt [and]

amounted to an unconstitutional directed verdict.” (Pet.

App. 15a.) But Frost’s counsel did not admit guilt,

arguing instead that Frost was not criminally liable

because he acted under duress. (See Pet. App. at

157a—158a). Further, as the dissent notes, it was

Frost’s choice to admit the elements and submit a

duress defense:

By requiring Frost to “opt for one [theory] or the

other,” the judge presented a choice to Frost as

opposed to handing down a prohibition or

mandate. And, although the judge may have

hinted at his belief that abandoning the duress

defense and electing to argue that the

12

prosecution had not satisfied its burden of proof

would be unwise, the judge did not usurp Frost’s

choice.

(Pet. App. at 31a.)

When a jury is properly instructed on the State’s

burden to prove each element beyond a reasonable

doubt, that burden is not reduced by a defendant’s

decision to admit the elements of an offense and to

present an affirmative defense.* See Florida v. Nixon,

543 U.S. 175, 188 (2004) (where defendant’s attorney

conceded guilt in opening statements, State was

nevertheless “obliged to present ... competent,

admissible evidence establishing the essential elements

of the crimes with which Nixon was charged”). Thus,

the en banc panel’s reliance on United States v.

Gaudin, 515 U.S. 506 (1995), and Sullivan v.

Louisiana, 508 U.S. 275 (1993), as part of the “long line

of clearly established Supreme Court precedent”

establishing a due process violation, is misplaced. (Pet.

App. at 15a.) In those cases the jury was improperly

instructed on its duty to find the elements beyond a

reasonable doubt. In Gaudin, the judge instructed the

jury that the judge, and not the jury, would determine

one of the elements of the offense. 515 U.S. at 508

(“[T]he issue of materiality is not submitted to [the

jury] for your decision but rather is a matter for the

decision of the court.” (Internal quotation marks and

alterations omitted)). In Sullivan, the trial court

*The Washington Supreme Court, the district court, and the three-

judge Ninth Circuit panel all agreed that Frost’s jury was properly

instructed on the State’s burden to prove each element. (Pet. App.

at 133a, 96a, 61a.)

13

instructed the jury on a definition of reasonable doubt

that the Court had earlier found to be unconstitutional.

508 U.S. at 277. Neither case “clearly establishes” a

due process violation when a jury is properly instructed

on the State’s burden.

Winship, Gaudin, and Sullivan do not clearly

establish that the State’s burden is lessened when the

defendant admits the elements of the offenses in order

to present an affirmative defense. They certainly do

not establish any structural error in these

circumstances.

C. A State may require a defendant to bear the

burden to prove an affirmative defense.

Nor has this Court held—let alone clearly

established—that the burden of proof improperly

shifted to Frost by requiring him to prove that he acted

under duress. To the contrary, this Court has held that

a State may place the burden on a defendant to prove

an affirmative defense:

This affirmative defense ... does not serve to

negative any facts of the crime which the State

is to prove in order to convict of murder. It

constitutes a separate issue on which the

defendant is required to carry the burden of

persuasion; and ... New York has not violated

the Due Process Clausc, and Patterson’s

conviction must be sustained.

Patterson v. New York, 432 U.S. 197, 206—07 (1977); see

also Smith v. United States, 133 S. Ct. 714, 719 (2013)

(“The State is foreclosed from shifting the burden of

proof to the defendant only when an affirmative

defense does negate an element of the crime.” (Internal

14

quotation marks omitted)). Duress, like entrapment,

admits that the defendant committed a crime but

argues a justification for doing so. The defense “does

not serve to negative any facts of the crime” and, if

believed, relieves the defendaut of criminal liability for

his acts. Thus, the burden was properly on Frost to

show duress.

Nevertheless, the en banc panel asserted that

Mullaney v. Wilbur, 421 U.S. 684 (1975), “clearly

establishes” that the burden of proof was

“unconstitutionally shifted to Frost” and that this

claimed error was structural. (Pet. App. at 15a.)

Mullaney did nothing of the sort. In Mullaney, this

Court considered “whether the Maine rule requiring

the defendant to prove that he acted in the heat of

passion on sudden provocation accords with due

process.” 421 U.S. at 692. After concluding that,

historically, heat of passion was “the single most

important factor in determining the degree of

culpability attaching to an unlawful homicide,” the

Court concluded that “the Due Process Clause requires

the prosecution to prove beyond a reasonable doubt the

absence of the heat of passion on sudden provocation

when the issue is properly presented in a homicide

case.” Id. at 704, 696. This Court distinguished

Mullaney in Patterson, noting that in Mullaney, “lack

of provocation was presumed” in violation of due

process. Patterson, 432 U.S. at 216. Under the

affirmative defense at issue in Patterson, however,

“nothing was presumed or implied,” and placing the

burden on the defendant to prove the defense did not

violate due process. Id.

15

Thus, the en banc panel has misconstrued this

Court’s rulings in finding that a “long line of clearly

established Supreme Court precedent” establishes a

due process violation in the trial court’s procedure,

resulting in structural error.

D. A defendant does not have a constitutional right

to argue inconsistent defense theories.

The Washington Supreme Court observed that “it is

generally permissible for defendants to argue

inconsistent defenses so long as they are supported by

the evidence.” (Pet. App. at 120a (citing Mathews, 485

U.S. at 63).) The right to present inconsistent

defenses, however, is not secured by the Constitution.

The Sixth Circuit has explained that a court may

prevent a defendant from presenting inconsistent

defenses:

Michigan law may well require a state court to

let a defendant assert inconsistent defenses

when supported by the evidence, and on occasion

even federal courts might be required to offer

instructions on inconsistent defenses when the

evidence supports both instructions, see

Mathews, 485 U.S. at 65—66, 108 S.Ct. 883. Not

all states, however, follow this rule, and the

right to present inconsistent defenses is not so

widespread or well-established as to be a

fundamental rule essential for due process.

Taylor v. Withrow, 288 F.3d 846, 854 (6th Cir. 2002)

(some internal citations omitted); see also People v.

Garcia, 826 P.2d 1259, 1263—64 (Colo. 1992) (“Garcia

cannot claim that an intruder stabbed L.C. and at the

same time obtain an instruction based on the theory

16

that he stabbed L.C. in the heat of passion.”); State v.

Person, 673 A.2d 463, 472 (Conn. 1996) (Norcott, J.,

concurring) (“I find it hard to accept that the right to

present a defense includes the right to present to the

jury a defense that the defendant’s own testimony

directly and conclusively contradicts.”); People uv.

Cooper, 606 N.E.2d 705, 715 (Til. App. Ct. 1992) (“[A]

defendant may not choose alternative and inconsistent

defenses, that is, claim at the same time that he did not

commit the offense, but that if he did, he was

entrapped.”); but see United States v. Trujillo, 390 F.3d

1267, 1274 (10th Cir. 2004) (allowing inconsistent

defenses); Arcoren v. United States, 929 F.2d 1235,

1245 (8th Cir. 1991) (same); Johnson v. United States,

426 F.2d 651, 656 (D.C. Cir. 1970) (“It is quite true that

a defendant has the right to argue inconsistent

defenses as Appellant did here.”).

The Washington Supreme Court requires that a

defendant be permitted to argue inconsistent defenses.

(See Pet. App. at 120a.) Therefore, the Washington

trial court erred as a matter of state law when it

precluded Frost from making an_ inconsistent

argument. But this Court has never held that a State

violates a defendant’s constitutional rights by requiring

a defendant to admit the elements of an offense before

asserting an affirmative defense, or by limiting closing

argument so that it is consistent with that defense.

The Ninth Circuit’s finding of structural error,

where this Court has never found error of any kind,

conflicts with the manner in which many states define

affirmative defenses and promotes uncertainty among

the states as to whether their established definitions of

affirmative defenses will survive federal scrutiny. It

17

further threatens to overturn valid state convictions

whenever a defendant chooses to present an

affirmative defense and carries the burden to prove

that defense. AEDPA does not authorize a federal court

to grant habeas relief in such a situation.

Il. The Ninth Circuit improperly extended

Herring and relied on its own circuit

precedent to find that any error was

structural.

When considering a federal habeas petition brought

by a prisoner in State custody, a federal court must

defer to the State court’s decision and may grant

habeas relief only if the State court’s adjudication

“resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

the United States.” 28 U.S.C. § 2254(d\(1). “A state

court’s determination that a claim lacks merit

precludes federal habeas relief so long as fairminded

jurists could disagree on the correctness of the state

court’s decision.” Harrington v. Richter, 131 S. Ct. 770,

786 (2011) (internal quotation marks omitted).

Here, even if the en banc panel were correct that

the trial court violated Frost’s Sixth Amendment and

due process rights by requiring that he admit the

elements of the offenses before asserting his

affirmative defense, this Court has not “clearly

established” that the error was structural. The en banc

panel concluded otherwise only after improperly

extending this Court’s holding in Herring and relying

on its own circuit precedent, failing to accord the state

court’s decision the proper deference in violation of

18

both AEDPA’s requirements and this Court’s

precedent.

A. The en banc panel improperly extended Herring

to conclude that structural error occurred.

In Herring, this Court held that the Sixth

Amendment right to the assistance of counsel and to

present a defense guarantees all defendants the right

to make closing arguments at trial. 422 U.S. at 859

(“[A] total denial of the opportunity for final argument

in a nonjury criminal trial is a denial of the basic right

of the accused to make his defense.”). At the same

time, this Court recognized the trial court’s

ability—and duty—to control argument:

This is not to say that closing arguments in

a criminal case must be uncontrolled or even

unrestrained. The presiding judge must be and

is given great latitude in controlling the

duration and limiting the scope of closing

summations... . In all these respects he must

have broad discretion.

Id. at 862. Thus, Herring expressly reserves to the

trial court an ability to limit argument, and it is silent

as to whether an improper restriction on closing

argument is structural error.

In AEDPA terms, this Court has “clearly

established” that a total denial of closing argument in

a criminal trial is structural error. But it has not

clearly established that an unconstitutional partial

denial of closing argument is structural error. Herring

did not address that issue; nor have any of this Court’s

cases since Herring. For this reason, even if the

Washington Supreme Court was wrong in concluding

19

that the limit on closing argument here was subject to

harmless-error review, AEDPA forecloses a grant of

habeas relief.

Nevertheless, the en banc panel held that Frost’s

choice to present an affirmative defense, thereby

admitting the elements of the offenses, “amounted to a

total denial of closing argument on a legitimate defense

theory and is thus squarely within the Herring rule.”

(Pet. App. at 17a.) Concluding that Herring error is

always structural, the en banc panel reversed the

Washington Supreme Court’s finding of harmless error.

(Pet. App. at 10a (“In assessing whether the error in

this case is structural, our task is easy because the

Supreme Court has determined that Herring error is

structural.”). But saying this was “Herring error” does

not make it so.° Frost’s counsel, unlike Herring’s

counsel, made a closing argument. The en banc court’s

statement that this was Herring error assumed the

very issue in dispute, which is whether an

unconstitutional partial limit on closing argument

should be treated the same way as a total denial of

closing argument.

° The panel states that the Washington Supreme Court “explicitly

held that the error here was Herring error, not mere trial error.”

(Pet. App. at 17a.) While the state court cited Herring to support

its conclusion that the trial court “infringed upon [Frost’s] Sixth

Amendment right to counsel,” it did not label the error “Herring

error” or find that the trial court violated Herring. (Pet. App. at

128a.) The court did not reference Herring at all in its discussion

of harmless error and did, in fact, find that the error was “mere

trial error.” (Pet. App. at 132a (“[Ajn erroneous limitation of the

scope of closing argument merely affects the trial process itself.”

(internal quotation marks omitted).)

20

This Court has not clearly established the answer to

that question, and “fairminded jurists could disagree”

as to whether the Herring rule applies in this situation,

thus precluding habeas relief. Richter, 1315S. Ct. at 786

(internal quotation marks omitted).

Only by extending Herring could the en banc panel

conclude that “[pjrecluding defense counsel from

arguing a legitimate defense theory” is Herring error

and, as a result, structural error. (Pet. App. at 12a.) As

this Court recently held, however, “if a habeas court

must extend a rationale before it can apply to the facts

at hand, then by definition the rationale was not

clearly established at the time of the state-court

decision.” Woodall, 134 S. Ct. at 1706 (internal

quotation marks omitted)). In Woodall, the Sixth

Circuit read three Supreme Court cases together to

conclude that this Court had “clearly established” that

“a no-adverse-inference instruction was required at the

penalty phase” of a capital trial when the defendant

does not testify. Id. at 1702. This Court disagreed,

refusing to adopt the view that “a state court commits

AEDPA error if it unreasonably refuses to extend a

legal principle to a new context where it should apply.”

Id. at 1705 (internal quotation marks and alteration

omitted). The Court observed that “AEDPA’s carefully

constructed framework ‘would be undermined if habeas

courts introduced rules not clearly established under

the guise of extensions to existing law.” Jd. at 1706

(quoting Yarborough v. A!varado, 541 U.S. 652, 666

(2004)). “The critical point is that relief is available

under § 2254(d)(1)’s unreasonable-application clause if,

and only if, it is so obvious that a clearly established

rule applies to a given set of facts that there could be

no ‘fairminded disagreement’ on the question.” Id. at

21

1706—07. For the reasons set out above, it is not “so

obvious” here.

By extending Herring to the facts in Frost’s case,

the en banc panel failed to give the state court’s

decision the deference that AEDPA requires.

B. The en banc panel improperly relied on its own

circuit precedent in finding clearly established

law.

This Court has warned federal habeas courts not to

rely on any law other than that established in its

holdings when determining “clearly established Federal

law” under AEDPA. See, e.g., Marshall v. Rodgers, 133

S. Ct. 1446, 1450 (2013) (The Ninth Circuit’s

determination of clearly established law “rested in part

on the mistaken belief that circuit precedent may be

used to refine or sharpen a general principle of

Supreme Court jurisprudence into a specific !egal rule

that this Court has not announced.”).

In finding the law “clearly established” that

“preventing a defendant from arguing a legitimate

defense theory constitutes structural error” (Pet. App.

at 1la), the en banc panel cited and relied on its own

circuit precedent, in violation of AEDPA’s requirement

that only this Court may determine what constitutes

“clearly established Federal law.” 28 U.S.C.

§ 2254(d)(1). Not only was it improper for the en banc

panel to consult its own precedent in determining

“clearly established Federal law,” but, as the dissent

points out, these cases do not support the panel’s

finding that the trial court’s error was structural

because neither case involved applying AEDPA’s

22

deferential standard of review. (See Pet. App. at

27a—3l1a.)

In relying on its own circuit precedent to determine

that the law is “clearly established” that the trial court

committed structural error, the en banc panel failed to

accord the proper deference to the Washington

Supreme Court’s contrary conclusion.

C. AEDPA precludes habeas relief where, as here,

fairminded jurists could disagree as to the

correctness of the state court decision.

Habeas relief is precluded when “fairminded jurists

could disagree’ on the correctness of the state court’s

decision.” Richter, 131 S. Ct. at 786. Here, fairminded

jurists have disagreed, both in the Washington

Supreme Court and in the Ninth Circuit, on whether

the trial court’s error was subject to harmless error

review. And, given this Court’s reluctance to find

structural error, the state court was reasonable in

reading Herring as establishing that only a complete

denial of closing arguments is structural error. See

Washington v. Recuenco, 548 U.S. 212, 218 (2006)

(“Only in rare cases has this Court held that an error

is structural, and thus requires automatic reversal.”);

Arizona v. Fulminante, 499 U.S. 279, 306 (1991) (“[T]he

Court has applied harmless-error analysis to a wide

range of errors and has recognized that most

constitutional errors can be harmless.”).

Even if this Court were to agree with the en banc

panel that the trial court’s claimed error was

structural, “there are reasonable arguments on both

sides—which is all [Washington] needs to prevail in

this AEDPA case.” Woodall, 134 S. Ct. at 1707; see also

23

Richter, 131 S. Ct. at 786 (“A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” (internal quotation marks omitted)). That

“there are reasonable arguments on both sides” here is

illustrated by the fact that dissenting opinions have

issued at every level of appellate review. (See Pet. App.

at 134a (Sanders, J., dissenting from Washington

Supreme Court’s application of harmless error review);

65a (McKeown, J., dissenting from Ninth Circuit

panel’s denial of habeas relief); 18a (Tallman, J.,

dissenting from en banc panel’s finding of structural

error)). Thus, not only could “fairminded jurists”

disagree as to whether the error was structural, they

have done so. The Ninth Circuit failed to accord the

deference to the Washington Supreme Court’s ruling

that the error here was harmless.

CONCLUSION

This Court should grant the State of Washington’s

petition for writ of certiorari.

24

Respectfully submitted this 28th day of August,

2014.

THOMAS C. HORNE

Arizona Attorney General

ROBERT L. ELLMAN

Solicitor General

JEFFREY A. ZICK

Chief Counsel

LAURA P. CHIASSON*

Assistant Attorney General

400 W. Congress, Bldg. S-315

Tucson, AZ 85701

Phone (520) 628-6520

Laura.Chiasson@azag.gov

* Counsel of Record

Counsel for Amici Curiae