Frost v. Von Boening, No. 11-35114 (4-29-14) (en banc) (Thomas for a 6-judge majority; Tallman for a 5-judge dissent).
In a habeas case, the 9th sitting en banc reversed a three-judge panel decision that affirmed the denial of relief to a Washington state prisoner. (Tallman wrote the panel opinion.) The en banc court found structural error when the state trial court forced petitioner in closing argument to argue either duress or reasonable doubt to a charge but not both as alternative theories. The state court's reasoning was that duress was an affirmative defense, requiring admission of all elements, so that if petitioner argued that the State failed to prove he was an accomplice to a bank robbery, he did not admit the elements. Petitioner then argued duress solely, and on rebuttal, the prosecutor argued he proved all elements. The 9th held that this was error under both Herring v. New York, 422 U.S. 853 (1975), and In re Winship, 397 U.S. 358 (1970). The 9th was emphatic how the defense was compromised, how the state court erred, how the error was unreasonable, and that AEDPA did not control as Herring controlled. Tallman, writing a dissent joined by four others, would find that AEDPA deference controls because the Supreme Court had never found this kind of restriction on the scope of closing argument to be structural error.