U.S. v. H.B., No. 11-30099 (8-22-12) (Nelson with Tashima and Callahan).

The 9th affirms an adjudication of juvenile delinquency. The evidence of aiding and abetting an ago sex assault was sufficient and the sentence of 18 months at a juvenile correctional facility was reasonable.

Frost v. Van Boening, No. 11-35114 (8-22-12) (Tallman with Guy (6th Cir); dissent by McKeown).

The 9th affirms a denial of a habeas petition arguing that the limiting of counsel's closing statement was structural error. The petitioner faced counts of burglary and robbery. His defense at trial was that the state failed to prove accomplice liability and that if he was an accomplice, he acted under duress. The state judge ordered that he chose one off the other to argue in closing, because duress was an affirmative duress. This was error. However, under AEDPA, the state court's determination that the error was harmless was not unreasonable. Under AEDPA, deference is given to the state courts. Here, although the Supreme Court held in Herring that preventing a closing argument was structural error and a violation of due process, the limiting here was not structural. The jury was instructed on the burden of proof, and the elements, and the defense argued one theory. This was not on direct appeal. McKeown dissented, arguing that the state court's ruling went to the core of due process, and was structural error under Herring. The petitioner was limited in arguing about the state's failure to prove all elements, and was forced to chose defenses where he didn't have to. The Supreme Court in Herring and circuit precedent made this clear.