Joshua Frost v. Ron Van Boening

Opinion by Judge TALLMAN; Dissent by Judge McKEOWN.

OPINION

We evaluate on federal habeas review the Washington Supreme Court’s decision to apply harmless error review over structural error analysis where the trial court prohibited defense counsel from arguing during closing argument both that the State failed to meet its burden of proof establishing accomplice liability and that a criminal defendant acted under duress. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

I

On December 17, 2003, Washington state prisoner Joshua Frost (“Frost”) was found guilty following a jury trial of first degree robbery, first degree burglary, second degree assault, and attempted robbery. The Superior Court of Washington for King County imposed a sentence of 657 months.

Frost appealed his jury conviction to the Washington Court of Appeals, which affirmed the trial court. He subsequently appealed that decision to the Washington Supreme Court. Frost presented a number of issues on appeal. The Washington Supreme Court exercised its power of discretionary review and limited his appeal to whether the trial court abused its discretion and violated Frost’s constitutional right to counsel…

Dissenting.

“Ladies and Gentlemen of the jury, there are two separate and distinct reasons why you should find my client not guilty. Unfortunately, I may explain only one reason to you. (And a silent p.s.: I wish I could argue reasonable doubt to you, but I can’t!).” This hypothetical summation mimics the extraordinary circumstances of Frost’s closing argument, the legal equivalent of counsel having one hand tied behind his back. Due to a misunderstanding of state law, the trial judge forced Frost to “opt for one or the other” legitimate defense — arguing duress or putting the government to its burden of proof. This undisputed denial of the constitutional right to present proper argument on alternative defense theories created a Hobson’s choice that violated Frost’s Sixth Amendment Right to Counsel and his Fourteenth Amendment Due Process rights.

In Herring v. New York, the Supreme Court explained the critical importance of closing argument: “The Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument *937 on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSHUA JAMES FROST,  No. 11-35114 Petitioner-Appellant, v.  D.C. No. 2:09-cv-00725-TSZ RON VAN BOENING, Superintendent,

OPINION

Respondent-Appellee.  Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, Senior District Judge, Presiding

Argued and Submitted December 8, 2011—Seattle, Washington

Filed August 22, 2012

Before: Ralph B. Guy, Jr.,* M. Margaret McKeown, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman; Dissent by Judge McKeown

*The Honorable Ralph B. Guy, Jr., Senior Circuit Judge for the Sixth Circuit, sitting by designation.

9561 9564 FROST v. VAN BOENING

COUNSEL

Erik Levin, Assistant Federal Public Defender, Office of the Federal Public Defender, Seattle, Washington, for petitioner- appellant Joshua Frost.

Robert McKenna, Attorney General, and John J. Samon, Assistant Attorney General, Olympia, Washington, for respondent-appellee Ron Van Boening.

OPINION

TALLMAN, Circuit Judge:

We evaluate on federal habeas review the Washington Supreme Court’s…