Frost v. Gilbert

• Decision Date: 21 March 2016
• Docket Number: No. 11–35114.,11–35114.
• Citation: 818 F.3d 469
• Parties: Joshua James FROST, Petitioner–Appellant, v. Margaret GILBERT, Superintendent, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

818 F.3d 469

Joshua James FROST, Petitioner–Appellant,

v.Margaret GILBERT, Superintendent,^* Respondent–Appellee.

No. 11–35114.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc June 26, 2013.

Filed March 21, 2016.

Erik B. Levin (argued), Law Office of Erik Levin, Berkeley, CA, for Petitioner–Appellant.

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

David M. Porter, Co–Chair, NACDL Amicus Committee, Sacramento, CA; Jon M. Sands, Federal Public Defender and Keith J. Hilzendeger, Assistant Federal Public Defender, Phoenix, AZ, for Amici Curiae Ninth Circuit Federal Public and Community Defenders and National Association of Criminal Defense Lawyers.

Before: SIDNEY R. THOMAS, Chief Judge, and STEPHEN REINHARDT, ALEX KOZINSKI, KIM McLANE WARDLAW, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, JAY S. BYBEE, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges.

Opinion by Judge KOZINSKI

; Partial Concurrence and Partial Dissent by Judge TALLMAN.

OPINION

KOZINSKI

, Circuit Judge:

In 2003, Joshua Frost was charged in state court with participating in an eleven-day spree of armed robberies and a burglary. Frost's attorney wanted to argue during summation that the state hadn't met its burden of proof and, in the alternative, that Frost committed the crimes under duress. The King County Superior Court erroneously refused to allow counsel to make these alternative arguments, so he chose to argue duress. The Washington Supreme Court held that the superior court's error was harmless. State v. Frost, 160 Wash.2d 765, 161 P.3d 361, 370–71 (2007)

(en banc). In a previous en banc opinion, we held that the restriction on Frost's closing argument was structural error. Frost v. Van Boening, 757 F.3d 910, 918–19 (9th Cir.2014) (en banc). The Supreme Court reversed. Glebe v. Frost, ––– U.S. ––––, 135 S.Ct. 429, 432, 190 L.Ed.2d 317 (2014) (per curiam). We must now decide whether Frost is nevertheless entitled to habeas relief because the error, though not structural, was prejudicial. In addition, we consider Brady and Napue issues that the district court did not certify for appeal.

DISCUSSION

I. The Harmless Error Issue

Our review of the Washington Supreme Court's harmless-error decision is governed by the Antiterrorism and Effective Death Penalty Act. See 28 U.S.C. § 2254(d)(1)

(requiring petitioners to demonstrate that a state court's decision on the merits is "contrary to, or involved an unreasonable application of, clearly established [f]ederal law" to obtain habeas relief). We may reverse the state supreme court's harmlessness determination only if Frost experienced "actual prejudice," that is, where we have "grave doubt about whether a trial error of federal law had ‘substantial and injurious effect or influence in determining the jury's verdict.’ " See Davis v. Ayala, –––U.S. ––––, 135 S.Ct. 2187, 2197–98, 192 L.Ed.2d 323 (2015) (quoting O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) and Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)

); see also id. at 2198–99 (explaining that the Brecht standard "subsumes" the requirements of AEDPA, which "sets forth a precondition to the grant of habeas relief" (quoting Fry v. Pliler, 551 U.S. 112, 119–20, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) )). Specifically, the inquiry is whether, in light of the record as a whole, the improper limitation on defense counsel's closing argument substantially influenced the verdict. Brecht, 507 U.S. at 638–39, 113 S.Ct. 1710.

The jury heard overwhelming evidence that Frost committed the charged offenses. The prosecution introduced Frost's recorded confessions, and he testified that he participated in the robberies and the burglary. The prosecution also linked evidence found in Frost's home to the crimes. On this record, any argument that the prosecution failed to meet its burden of proof would have fallen on deaf ears. Accordingly, Frost wasn't prejudiced by the superior court's error in denying him the right to make that argument. See Brecht, 507 U.S. at 637–38, 113 S.Ct. 1710

; see also Davis, 135 S.Ct. at 2199.

II. The Brady and Napue Issues

Frost maintains that the prosecution withheld material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

. He claims that the evidence would have undermined the testimony of Edward Shaw, a key prosecution witness. He also argues that the prosecution called Shaw to testify falsely about the existence of that exculpatory evidence in violation of Napue v. Illinois, 360 U.S. 264, 269–70, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

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

.

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

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

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

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

In March 2008, shortly after exhausting his direct appeal, Frost sent a letter requesting "any documentation that could be used to establish the credibility and or expierance [sic] Mr. Shaw has or had as a Police Informant." The public records officer responded by identifying several docket numbers involving Shaw, including his domestic-violence case. The records officer estimated that there were "1000 pages of documents" responsive to Frost's request, which would cost $195.00 to copy and ship. In his reply, Frost explained that he wasn't "looking for complete case files, as that would be quite expensive." Rather, he sought "any documents" that could show "any special treatment [Shaw] was given in regards to ... cooperation with [the prosecuting attorney's] office or the King County Police Department." The records officer responded that she did not "find any records responsive to [Frost's] request."

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

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

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

The district...