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  • With Its Decision in Glebe v. Frost, The Supreme Court States That Even When A Conviction Is Fundamentally Flawed, Habeas Corpus Relief May Be Denied

    In April 2013, over the course of eleven days, Joshua James Frost and two associates committed a series of armed robberies in Washington State. Frost was charged with: (1) robbery and related offenses and (2) participating as an accomplice.

    During closing arguments, Frost’s lawyer requested to argue both: (a) that the prosecution failed to prove that Frost was an accomplice, in spite of Frost’s connection to the crimes; and (b) that even if Frost’s participation was enough to make him an accomplice, he only participated in the crimes under duress. The trial judge found that state law prohibited simultaneously contesting two contradictory legal theories. As such, he denied the request and Frost’s lawyer was forced to choose between the two alternative defenses. He chose to argue duress. The jury convicted Frost of six counts of robbery, one count of attempted robbery, one count of burglary, and two counts of assault.

    On appeal, the Washington Supreme Court found that the trial court’s restriction of Frost’s closing argument violated Frost’s rights to due process and assistance of counsel. However, the court held that this error constituted a trial error, subject to harmlessness review, rather than a structural error, subject to automatic reversal. Upon examining the decision for harmlessness, the Washington Supreme Court found sufficient evidence to convict Frost and upheld the conviction.

    Having exhausted his options at the state level, Frost filed a writ of habeas corpus. The district court denied the writ. The Ninth Circuit Court of Appeals, en banc, reversed and directed the district court to grant the petition, finding that the Washington Supreme Court unreasonably applied clearly established federal law by classifying the restriction as a trial, rather than a structural, error. The Supreme Court granted writ of certiorari and reversed.

    Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal courts can only grant habeas corpus relief when a state court decision “is contrary to, or involves an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” In the present case, the Ninth Circuit cited Herring v. New York as the federal law that the Washington Supreme Court failed to properly apply. Herring, however, involved the complete denial of a closing argument rather than a limitation on it. In an attempt to “bridge the gap” between Herring and the present matter, the Ninth Circuit cited two Circuit decisions to assert the rule that preventing a defendant from arguing a legitimate defense theory constitutes a structural error.

    The Supreme Court found the Ninth Circuit’s use of Herring, supported by Circuit precedent, to be an unreasonable application of federal law, stating that the Supreme Court’s decisions concerning structural errors “have not been characterized by an in for a penny, in for a pound approach.” The Court once again asserted that “circuit precedent cannot refine or sharpen a general principle of Supreme Court jurisprudence into a single legal rule that … [the Supreme Court] has not announced.” Lopez v. Smith. Since Herring states that denying counsel the right to make a closing argument constitutes a structural error and is silent on the issue of closing argument restrictions, federal law, as determined by the Supreme Court, only deems complete denial, not the placement of restrictions, as a structural error.

    The Glebe v. Frost decision not only continues to restrict habeas relief by prohibiting circuit courts from utilizing their own precedent, but also states that certain fundamentally flawed convictions, which deprive citizens of their rights, may not necessarily be reversed. This creates substantial roadblocks for the relief of parties going forward.


    To learn more about habeas corpus relief and federal appeals, please contact Cynthia A. Augello via email at caugello@cullenanddykman.com or via telephone at 516-357-3753.

    A special thank you to Cecilia Ehresman, a law clerk at Cullen and Dykman LLP, for her assistance with this blog post.