Frost v. Van Boening

• Decision Date: 22 August 2012
• Docket Number: No. 11–35114.,11–35114.
• Citation: 2012 Daily Journal D.A.R. 11678,692 F.3d 924,12 Cal. Daily Op. Serv. 9598
• Parties: Joshua James FROST, Petitioner–Appellant, v. Ron VAN BOENING, Superintendent, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

692 F.3d 924

12 Cal. Daily Op. Serv. 9598

2012 Daily Journal D.A.R. 11,678

Joshua James FROST, Petitioner–Appellant,

v.Ron VAN BOENING, Superintendent, Respondent–Appellee.

No. 11–35114.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 2011.

Filed Aug. 22, 2012.

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

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

Appeal from the United States District Court for the Western District of Washington, Thomas S. Zilly, Senior District Judge, Presiding. D.C. No. 2:09–cv–00725–TSZ.

Before: RALPH B. GUY, JR.,^*M. MARGARET McKEOWN, and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge TALLMAN; Dissent by Judge McKEOWN.

OPINION

TALLMAN, Circuit Judge:

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 and a fair trial by prohibiting Frost's counsel from arguing reasonable doubt as to accomplice liability in closing argument while simultaneously arguing the affirmative defense of duress. The Washington Supreme Court affirmed Frost's judgment and sentence but held that although the trial court had abused its discretion by “unduly limit[ing] the scope of Frost's counsel's closing argument” due to its misreading of prior precedent, the trial court's error was nonetheless harmless.¹ The mandate issued on July 25, 2007. The United States Supreme Court denied certiorari on January 14, 2008. Frost v. Washington, 552 U.S. 1145, 128 S.Ct. 1070, 169 L.Ed.2d 815 (2008).

In May 2009, after two unsuccessful rounds of collateral state habeas litigation (called “personal restraint petitions” in Washington), Frost filed a habeas corpus petition in the United States District Court for the Western District of Washington. In June 2009, the district court stayed the habeas petition to allow Frost the opportunity to pursue his third and last personal restraint petition in the Washington Supreme Court. Following the Washington Supreme Court's decision to deny that petition as time-barred, the district court lifted the stay on February 18, 2010.

Frost filed an amended federal habeas corpus petition—the subject of this appeal—on February 26, 2010. Frost raised a number of grounds for relief on appeal, including that the trial court violated his Fourteenth Amendment due process rights and Sixth Amendment right to counsel by prohibiting trial counsel from arguing simultaneously in closing argument that the State failed to prove beyond a reasonable doubt that Frost was an accomplice and Frost's duress defense.

On October 5, 2010, United States Magistrate Judge Brian A. Tsuchida issued a Report and Recommendation, concluding that the district court should deny the amended habeas petition.² The Report and Recommendation did not address the Washington Supreme Court's holding that the trial court abused its discretion by limiting the scope of the defense's closing argument because the State failed to challenge that determination. Consequently, as to the issue presently before us, the Report and Recommendation only addressed whether the Washington Supreme Court reasonably determined that the trial court's error was subject to harmless error analysis. It concluded that the Washington Supreme Court reasonably determined that the error was subject to harmless—not structural—error analysis.

United States District Judge Thomas S. Zilly adopted the Report and Recommendation and dismissed the habeas petition with prejudice. The district court granted a certificate of appealability as to Frost's claim that the restriction on closing argument violated due process and his right to counsel, but denied issuing a certificate of appealability as to Frost's remaining claims.³ Frost timely appealed.

The pertinent facts regarding Frost's involvement in the robberies, burglaries, and other related crimes, as summarized by the Washington Supreme Court, are as follows:

Frost's criminal conduct involved five discrete incidents over 11 days. First, on April 8, 2003, Frost, together with accomplices Matthew Williams and Alexander Shelton, robbed and burglarized the home of Lloyd and Verna Gapp. Frost acted as the driver and also entered the home with Williams and Shelton. Firearms were used.

On April 12, 2003, Frost acted as the driver for Shelton and Williams, who robbed a Taco Time restaurant while armed with firearms. Then on April 15, 2003, Frost, Williams, Shelton, and another man participated in the robbery of T and A Video. Frost again acted as the driver and also performed surveillance of the video store prior to the robbery. On April 17, 2003, Frost acted as the driver for Williams and Shelton, who robbed a 7/Eleven store at gunpoint. During this robbery, one accomplice threatened two customers in the store's parking lot with a gun. Immediately following this robbery, Frost drove Williams and Shelton to Ronnie's Market, which they also robbed using firearms. During the course of this robbery, employee Heng Chen was shot in the hand.

Frost, Williams, and Shelton were arrested on April 20, 2003. Several firearms, a cash register, safes, bank bags, and ski masks associated with the above offenses were found inside Frost's home. Frost made multiple confessions to the police regarding the above offenses, recordings of which were introduced at trial. Ultimately, Frost was charged with six counts of robbery, one count of burglary, one count of attempted robbery, and three counts of assault; most charges included firearms enhancements.

Prior to trial, Frost moved to suppress his statements to the police; the court denied his motion and admitted the confessions. Frost testified at trial. He generally admitted participating in the robberies but claimed he acted under duress.

Frost, 161 P.3d at 364.

At trial, Frost testified that he felt forced to participate in the robberies because he was concerned that if he refused to do so, Williams would harm him, his mother, and brother. As a result, Frost's counsel informed the court that he intended to argue during closing argument both that the State failed to meet its burden as to accomplice liability and that Frost (if found to have been an accomplice) acted under duress in committing the charged robbery offenses. In response to the State's objection, citing Riker, 869 P.2d at 43, the trial court ruled that defense counsel could not argue both theories in closing. The court announced that if Frost's counsel argued the State had failed to meet its burden of proof as to any of the robbery offenses, the court would not instruct the jury on duress as to those offenses. Specifically, the court stated:

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. Riker is very clear on this. You must admit the elements of the offense have been proved before you can use the duress offense.

Defense counsel objected to the court's ruling and in response to the court's instructions asked, “[b]ut am I not permitted to argue in the alternative, using duress and failure to prove in the alternative?” “No,” the court responded. “Duress is an affirmative defense. To quote Riker, a defense of duress admits that the defendantcommitted the unlawful act but pleads an excuse for doing so. You may not argue both.”

In compliance with the court's ruling, defense counsel generally limited his argument to the affirmative defense of duress. As the Washington Supreme Court noted, however, the prosecutor acknowledged the State's burden of proof beyond a reasonable doubt during closing argument as to each of Frost's robbery offenses. The jury was also instructed on the State's burden of proof as to each element of the crimes charged, as well as the requirements to prove accomplice liability.

II

We review a district court's denial of a habeas petition de novo and the findings of fact for clear error. Schultz v. Tilton, 659 F.3d 941, 942 (9th Cir.2011); Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir.2007). A determination of a factual issue made by a state court is presumed to be correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Norris v. Morgan, 622 F.3d 1276, 1294 n. 21 (9th Cir.2010). “[A] state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005).

III

A

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs our review of Frost's habeas petition. 28 U.S.C. § 2254; Ybarra v. McDaniel, 656 F.3d 984, 989 (9th Cir.2011). The provisions of AEDPA “create an independent, high standard to be met before a federal court may issue a writ of habeas...