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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2014

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0335%3A5. Public record. Not legal advice.