Case Information
*1 SUPREME COURT OF THE UNITED STATES
PATRICK GLEBE, SUPERINTENDENT, STAFFORD
CREEK CORRECTIONS CENTER JOSHUA JAMES FROST
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 14–95 Decided November 17, 2014 P ER C URIAM .
Over 11 days in April 2003, respondent Joshua Frost helped two associates commit a series of armed robberies in the State of Washington. In the main, Frost drove his confederates to and from their crimes. On one occasion, he also entered the house being robbed. On another, he performed surveillance in anticipation of the robbery.
Washington charged Frost with robbery and related offenses. Taking the witness stand, Frost admitted to his involvement, but claimed he acted under duress. As clos- ing arguments drew near, however, Frost’s lawyer ex- pressed the desire to contend both (1) that the State failed to meet its burden of proving that Frost was an accomplice to the crimes and (2) that Frost acted under duress. The trial judge insisted that the defense choose between these alternative arguments, explaining that state law prohib- ited a defendant from simultaneously contesting the ele- ments of the crime and presenting the affirmative defense of duress. So Frost’s lawyer limited his summation to duress. The jury convicted Frost of six counts of robbery, one count of attempted robbery, one count of burglary, and two counts of assault.
The Washington Supreme Court sustained Frost’s con-
viction. It rejected the trial court’s view that state law
prohibited Frost from simultaneously contesting criminal
liability and arguing duress.
State
v.
Frost
, 160 Wash. 2d
765, 773–776,
Frost filed a petition for writ of habeas corpus under 28 U. S. C. §2254. The District Court dismissed the petition, App. to Pet. for Cert. 76a, and a panel of the Court of Appeals affirmed, Frost Van Boening , 692 F. 3d 924 (CA9 2012). But the Court of Appeals en banc reversed and instructed the District Court to grant relief. 757 F. 3d 910 (2014).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the Court of Appeals had power to grant Frost habeas corpus only if the Washington Su- preme Court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d). Here, the Ninth Circuit held that the Washington Supreme Court unrea- sonably applied clearly established federal law by failing to classify the trial court’s restriction of closing argument as structural error.
That decision cannot stand. Assuming for argument’s sake that the trial court violated the Constitution, it was *3 not clearly established that its mistake ranked as struc- tural error. Most constitutional mistakes call for reversal only if the government cannot demonstrate harmlessness. Neder v. United States , 527 U. S. 1, 8 (1999). Only the rare type of error—in general, one that “ ‘infect[s] the entire trial process’ ” and “ ‘necessarily render[s] [it] fun- damentally unfair’ ”—requires automatic reversal. Ibid. None of our cases clearly requires placing improper re- striction of closing argument in this narrow category.
The Ninth Circuit claimed that the Washington Su- preme Court contradicted Herring v. New York , 422 U. S. 853 (1975). Herring held that complete denial of summa- tion violates the Assistance of Counsel Clause. According to the Ninth Circuit, Herring further held that this denial amounts to structural error. We need not opine on the accuracy of that interpretation. For even assuming that Herring established that complete denial of summation amounts to structural error, it did not clearly establish that the restriction of summation also amounts to struc- tural error. A court could reasonably conclude, after all, that prohibiting all argument differs from prohibiting argument in the alternative. That is all the more true because our structural-error cases “ha[ve] not been char- acterized by [an] ‘in for a penny, in for a pound’ approach.” Neder , supra , at 17, n. 2.
Attempting to bridge the gap between
Herring
and this
case, the Ninth Circuit cited two Circuit precedents—
United States
v.
Miguel
, 338 F. 3d 995 (CA9 2003), and
Conde
v.
Henry
,
The second rationale for the Court of Appeals’ decision
is no more sound than the first. The Ninth Circuit rea-
soned that, by allowing the prosecution to argue that it
had proved the elements of the crimes, but “prohibit[ing]”
the defense from responding that it had not, the trial court
in effect “forc[ed] defense counsel to concede his client’s
guilt.”
No. The trial court, to begin, did not prohibit the de- fense from arguing that the prosecution failed to prove the elements of the crime. It instead precluded the defense from simultaneously contesting reasonable doubt and claiming duress. Reasonable minds could disagree whether requiring the defense to choose between alternative theo- ries amounts to requiring the defense to concede guilt. Still more could they disagree whether it amounts to eliminating the prosecution’s burden of proof, shifting the burden to the defendant, or directing a verdict. In addi- tion, even if the trial court’s ruling somehow “forced” the defense “at least tacitly [to] admit the elements of the crimes,” id., at 913, the Ninth Circuit still would have no basis for ruling as it did. It goes much too far to suggest that our cases clearly establish that this supposed extrac- tion of a “taci[t] admi[ssion]” is structural error, when they *5 classify the introduction of a coerced confession only as trial error, Arizona Fulminante , 499 U. S. 279, 310 (1991).
* * *
Frost argued below that, even if it was reasonable for the State Supreme Court to treat improper restriction of summation as trial error, it was unreasonable for it to find harmlessness on the facts of this case. The Court of Ap- peals did not address this argument when sitting en banc, and it is not before us today.
We grant the petition for a writ of certiorari and re- spondent’s motion to proceed in forma pauperis . We re- verse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings con- sistent with this opinion.
It is so ordered.