and Submitted En Banc June 26, 2013, Seattle, Washington
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.
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.
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.
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.
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.
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.
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
Levin (argued), Law Office of Erik Levin, Berkeley,
California, for Petitioner-Appellant.
Joseph Samson (argued), Assistant Attorney General,
Corrections Division; Robert W. Ferguson, Attorney General,
Olympia, Washington, for Respondent-Appellee.
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
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,
Kozinski, Circuit Judge.
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.
The Harmless Error Issue
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.
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.
The Brady and Napue Issues
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).
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
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.
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?"
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
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
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."
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.
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 ...