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Frost v. Gilbert

United States Court of Appeals, Ninth Circuit

March 21, 2016

JOSHUA JAMES FROST, Petitioner-Appellant,
MARGARET GILBERT, Superintendent, [*] Respondent-Appellee

         Argued and Submitted En Banc June 26, 2013, Seattle, Washington

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



         Habeas Corpus

         On remand from the Supreme Court, the en banc court affirmed the district court's denial of habeas corpus relief to Washington state prisoner Joshua Frost, who challenges his conviction on charges stemming from his participation in a spree of armed robberies and a burglary.

         The en banc court held that the King County Superior Court's erroneous refusal to allow defense counsel to make alternative arguments during summation -- that the state hadn't met its burden of proof, and that Frost committed the crimes under duress -- was harmless because the jury heard overwhelming evidence that Frost committed the charged offenses and any argument that the prosecution failed to meet its burden of proof would have fallen on deaf ears.

         The en banc court granted a certificate of appealability as to Frost's claims that the prosecution withheld material, exculpatory evidence in violation of Brady v. Maryland and that the prosecution called witness Edward Shaw to testify falsely about the existence of that evidence in violation of Napue v. Illinois.

         The en banc court held that Frost demonstrated cause for failing to raise the Brady and Napue claims in his 2008 personal restraint petition. But the en banc court held that Frost cannot show prejudice. The en banc court explained that given the evidence of guilt presented at trial, there is no reasonable likelihood that Shaw's false testimony about having only one plea agreement could have affected the judgment of the jury, and there is no reasonable likelihood that the jury could have acquitted Frost based on his duress defense, even if they had learned of an undisclosed signed version of Shaw's plea agreement in a firearm-and-drug possession case or an undisclosed plea agreement in Shaw's domestic-violence case.

         In Section II C (in which Judge Nguyen did not join), Judge Kozinski wrote that he and the four joining judges found the facts giving rise to the Brady and Napue claims most troubling. He wrote that there is cause to believe that the King County Prosecuting Attorney's Office violated Brady and Napue by willfully withholding evidence of Shaw's domestic-violence plea deal and by permitting Shaw to lie on the stand, and that subsequent to the trial, the office stonewalled in providing Frost this information when he doggedly requested it.

         Judge Tallman, joined by Judges Rawlinson, Bybee, Callahan, and M. Smith, concurred in part, dissented in part, and concurred in the judgment denying habeas relief. Judge Tallman wrote that the majority's decision to reverse the en banc court's prior decision declining to certify Frost's remaining claims for appeal, only to deny his meritless Brady and Napue claims, exceeds the Supreme Court's remand instructions and is a blatant disregard of binding Supreme Court precedent enforcing procedural bars and a lamentable waste of precious judicial resources. He wrote that Section II C, which is not the judgment of this court, launches a groundless, personal attack against several King County employees who have no way to defend themselves from the defamation.

         Erik B. Levin (argued), Law Office of Erik Levin, Berkeley, California, for Petitioner-Appellant.

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

         David M. Porter, Co-Chair, NACDL Amicus Committee, Sacramento, California; Jon M. Sands, Federal Public Defender and Keith J. Hilzendeger, Assistant Federal Public Defender, Phoenix, Arizona, 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.


         Alex 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 Wn.2d 765, 161 P.3d 361, 370-71 (Wash. 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, 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.


         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, 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.

         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; 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 ...

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