Joshua Frost v. Ron Van Boening

Filing

Filed order and amended opinion (SIDNEY R. THOMAS, 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). Amending Disposition Opinion AFFIRMED. In light of the Washington State Bar Association Office of Disciplinary Counsel s dismissal of the grievance against Zachary C. Wagnild, ODC File No. 16-00470, the previous majority opinion and dissent filed March 21, 2016, and reported at 818 F.3d 469, are WITHDRAWN and REPLACED by the attached unanimous amended opinion. The petition for rehearing en banc filed by the King County Prosecutor s Office and Zachary C. Wagnild s joinder in the petition for rehearing are ordered to be FILED as amicus briefs. Future petitions for rehearing en banc will not be entertained from the filing of the amended opinion. [10103593]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA JAMES FROST,
Petitioner-Appellant,
v.

No. 11-35114
D.C. No.
2:09-cv-00725TSZ

MARGARET GILBERT,
Superintendent,*
Respondent-Appellee.

ORDER AND
AMENDED
OPINION

Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted En Banc June 26, 2013
Seattle, Washington
Filed March 21, 2016
Amended August 29, 2016
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.

*

We substitute Superintendent Margaret Gilbert for Patrick Glebe as
the respondent-appellee on our own motion. See Fed. R. App. P. 43(c)(2).

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FROST V. GILBERT
Order;
Opinion by Judge Kozinski

SUMMARY**

Habeas Corpus
In light of the Washington State Bar Association Office
of Disciplinary Counsel’s dismissal of a grievance against
Zachary C. Wagnild, the en banc court filed an order
withdrawing an opinion and dissent filed March 21, 2016,
replacing the opinion and dissent with a unanimous amended
opinion, and ordering a petition for rehearing en banc filed by
the King County Prosecutor’s Office and Wagnild’s joinder
in the petition for rehearing filed as amicus briefs.
In the amended opinion, the en banc court, on remand
from the Supreme Court, affirmed the district court’s denial
of habeas corpus relief to Washington state prisoner Joshua
Frost, who challenged 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
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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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 while Frost may have shown
cause for failing to raise the Brady and Napue claims in his
2008 personal restraint petition, he 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.

COUNSEL
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.

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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.
James M. Whisman, Senior Deputy Prosecuting Attorney;
Daniel T. Satterberg, King County Prosecuting Attorney;
Seattle, Washington; as and for Amicus Curiae King County
Prosecuting Attorney.
Steven W. Fogg, Corr Cronin Michelson Baumgardner Fogg
& Moore LLP, Seattle, Washington, for Amicus Curiae
Zachary C. Wagnild.

ORDER
In light of the Washington State Bar Association Office
of Disciplinary Counsel’s dismissal of the grievance against
Zachary C. Wagnild, ODC File No. 16-00470, the previous
majority opinion and dissent filed March 21, 2016, and
reported at 818 F.3d 469, are WITHDRAWN and
REPLACED by the attached unanimous amended opinion.
The petition for rehearing en banc filed by the King County
Prosecutor’s Office and Zachary C. Wagnild’s joinder in the
petition for rehearing are ordered to be FILED as amicus
briefs.
Future petitions for rehearing en banc will not be
entertained from the filing of the amended opinion.

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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,
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
(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 harmlesserror 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

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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
(2015) (quoting O’Neal v. McAninch, 513 U.S. 432, 436
(1995) and Brecht v. Abrahamson, 507 U.S. 619, 637
(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 (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 (1963). He claims that the evidence would

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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 (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. Shaw negotiated two plea
agreements, which are dated November 2003, a few weeks
before Frost’s trial. 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?”

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Shaw also testified about the plea agreement for his
unlawful-possession case. The prosecution introduced an
unsigned letter summarizing that agreement. Shaw testified
that he had signed a version of the agreement that was
identical to the letter the state presented at trial. Shaw didn’t
mention that he was also negotiating a separate agreement to
resolve his domestic-violence charges. The prosecution did
not disclose the existence of Shaw’s domestic-violence plea
agreement, which ultimately provided that the sentence for
that offense would run concurrently with that for unlawful
possession; nor did it otherwise correct his testimony.
Nor was the signed version of Shaw’s unlawfulpossession plea agreement identical to the letter presented at
trial; it contained a handwritten reference to his domesticviolence 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

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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.

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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 judge adopted the magistrate judge’s report
and recommendation in full. He concluded that Frost’s
evidence didn’t demonstrate that the prosecuting attorney’s
office engaged in “persistent efforts to suppress”
impeachment evidence. The district judge also found that
Shaw’s testimony wasn’t pivotal in light of the prosecution’s
ample evidence establishing Frost’s involvement in the
charged crimes. The district judge declined to grant
certificates of appealability on Frost’s Brady and Napue
claims.
A.
The standard for granting a certificate of appealability is
low. Shoemaker v. Taylor, 730 F.3d 778, 790 (9th Cir. 2013)
(as amended). All that’s required is that “reasonable jurists
could debate” whether the petition states a “valid claim of the
denial of a constitutional right” and whether the district court
“was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). As explained below, these issues
are at least debatable and implicate Frost’s constitutional
rights. Accordingly, Frost has met the standard for granting
a certificate of appealability, and we do so here.

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B.
Because the Washington Supreme Court held that Frost
defaulted on his Brady and Napue claims, he must overcome
the default by showing cause and prejudice. See Strickler v.
Greene, 527 U.S. 263, 282 (1999).
Cause. Frost started researching his Brady and Napue
claims well before the deadline for filing a personal restraint
petition had passed. The Supreme Court denied Frost’s
petition for certiorari on January 14, 2008, see Frost v.
Washington, 552 U.S. 1145 (Jan. 14, 2008), so he had until
January 14, 2009 to seek relief through collateral review. See
Wash. Rev. Code § 10.73.090(2), (3)(c) (2008). Frost made
his first inquiry to the King County Prosecuting Attorney’s
Office about documents that would call Shaw’s credibility
into question in March 2008. Had the prosecuting attorney’s
office responded accurately to Frost’s document requests, he
could have filed a timely petition.
Frost first asked for “any documents . . . that could be
used to establish the credibility . . . Mr. Shaw has or had as a
Police Informant.” The records officer represented that she
could provide complete case files for $195 or that Frost could
narrow his search. Frost narrowed the search by asking for
“any documents . . . in regards to any special treatment
[Shaw] was given in regards to . . . cooperation with your
office or the King County Police Department.” The officer
responded that she did “not find any records responsive to
[Frost’s] request.” Frost then rephrased his query as for
“information . . . that would show [Shaw’s] reliability,” but
maintains that the records officer was unresponsive to his
request.

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Frost explains that his delay in bringing his Brady and
Napue claims is due to the King County Prosecuting Attorney
Office’s initial failure to disclose potentially exculpatory
information surrounding Shaw’s plea agreements. And its
later failure to disgorge Shaw’s plea agreements, despite
Frost’s repeated requests, may amount to “interference by
officials” that supplies cause to excuse Frost’s procedural
default. Murray v. Carrier, 477 U.S. 478, 488 (1986)
(quoting Brown v. Allen, 344 U.S. 443, 486 (1953)). At the
least, it shows “some objective factor external to the defense”
that prevented Frost from complying with Washington’s rule
setting time limits for bringing personal restraint petitions.
Id.; accord Amadeo v. Zant, 486 U.S. 214, 222 (1988).
Frost filed a personal restraint petition in 2008 raising
multiple claims for relief. No doubt, he would have presented
allegations of Brady and Napue violations in that petition, had
he been aware of the facts supporting those arguments.
“[T]he reason for [Frost’s] failure to develop facts in [s]tatecourt proceedings may have been the [s]tate’s suppression of
the relevant evidence.” Banks v. Dretke, 540 U.S. 668, 691
(2004) (citing Strickler, 527 U.S. at 282). If so, Frost has
demonstrated cause for failing to raise his Brady and Napue
claims in his 2008 personal restraint petition. See, e.g.,
Amadeo, 486 U.S. at 222 (finding “ample cause to excuse [a
petitioner’s] procedural default” where county officials
concealed a key document and counsel had no tactical reason
for failing to raise the claim); Crawford v. Head, 311 F.3d
1288, 1327 (11th Cir. 2002) (petitioner demonstrated cause
where state failed to disclose Brady material in its possession
despite multiple requests from counsel); Crivens v. Roth,
172 F.3d 991, 995 (7th Cir. 1999) (petitioner had cause to
overcome procedural default of Brady claim where

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prosecution didn’t provide the criminal record of its witness
until after the habeas petition was filed).
Prejudice. While Frost may have shown cause, he cannot
show prejudice. Given the evidence of guilt presented at trial,
there is no “reasonable likelihood” that Shaw’s false
testimony about only having one plea agreement could have
“affected the judgment of the jury.” Sivak v. Hardison, 658
F.3d 898, 912, 914 (9th Cir. 2011) (quoting Jackson v.
Brown, 513 F.3d 1057, 1076 (9th Cir. 2008)) (finding no
prejudice at trial from a Napue violation where the
defendant’s own testimony and physical evidence “pointed to
his guilt”). Had the jury learned of Shaw’s second plea
agreement, there is no “reasonable probability” that the
outcome would have been different. See Strickler, 527 U.S.
at 296.
Shaw’s undisclosed domestic-violence offense carried a
maximum sentence of five years—the same as his unlawfulpossession offenses. It is unlikely that the prosecution could
have put pressure on Shaw to change his testimony by
threatening to seek consecutive sentences for his offenses. In
Washington, there is a presumption that sentences imposed at
the same time will be served concurrently. Wash. Rev. Code
§ 9.94A.589(1)(a); State v. Vance, 230 P.3d 1055, 1058–59
(Wash. 2010) (en banc). Nothing in the record suggests that
the state could have overcome this presumption. Neither of
Shaw’s crimes were “serious violent offenses.” Wash. Rev.
Code § 9.94A.030(37) (2002) (defining “serious violent
offense”); id. § 9.94A.589(1)(b) (requiring consecutive
sentences for defendants who’ve committed two or more
serious violent offenses). Nor is there evidence of any other
factor that Washington courts normally rely on in justifying
consecutive sentences, such as the use of a “high degree of

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sophistication or planning,” or an abuse of a “position of
trust.” See id. § 9.94A.535(2)(e)(v)–(vi).
While Frost could have shown that Shaw was a bad guy
because he not only unlawfully possessed a firearm and drugs
but also assaulted his girlfriend, it wouldn’t have gotten him
far. The jury already knew that Shaw received benefits in
exchange for his testimony. The jury also heard that Shaw
gave information about Frost’s crimes to the police even after
they declined a deal on his pending unlawful-possession
charges. And the jury was aware that Shaw approached
authorities with information about Frost in April, well before
he committed the assault in August.
Any impact of this impeachment evidence would have
been vitiated by Frost’s own testimony, which cast doubt on
his duress defense. Frost didn’t have a good answer for why
he didn’t attempt to escape from Williams when he had a
chance. He admitted that he was left alone in the car when
his accomplices committed one of the robberies. Frost also
admitted that he picked up Williams on several occasions, as
Williams didn’t have a car. Frost acknowledged that he never
tried to get his mother and brother to a safe place in response
to Williams’s alleged threats against them. Nor did he call
911, although he’d previously done so when he felt
threatened by others. Finally, Frost admitted that, during his
first interview with the police, he didn’t say that he had been
threatened by Williams, even though the officer twice urged
him to say “anything” he wanted. There’s no reasonable
likelihood that the jury could have acquitted Frost based on
his duress defense, even if they had learned of the
undisclosed plea agreements.
*

*

*

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Because Frost can’t show prejudice as a result of the
errors committed at his trial, he is entitled to no relief in
federal court.
AFFIRMED.