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Frost v. Gilbert, No. 11-35114 [March 21, 2016]

Frost v. Gilbert

En banc court on remand from the Supreme Court affirmed the denial of his habeas petition challenging his conviction on charges stemming from his participation in a spree of armed robberies and a burglary. Frost claim the court erred in denying his request to argue to the jury that the state hadn’t met its burden of proof and in the alternative that he committed the crimes under duress. When forced to make a choice Frost choose to argue duress. The Court previously found the restriction on his argument structural error and reversed. The Supreme Court reversed that finding and the Court now found that the error was not prejudicial as the jury heard overwhelming evidence as to his guilt. The more difficult issues were his newly raised claim of Brady and Napue error. Frost claim that the prosecution withheld exculpatory evidence of a prosecution witness and that it allowed the witness to testify falsely “about the existence of that exculpatory evidence.” After granting Frost a certificate of appealability on this issue the Court found that he had not establish prejudice as there was no “reasonable likelihood” that the prosecution’s witness’s false testimony about only having one plea agreement could have “affected the judgment of the jury” in spite of finding the conduct of the DA “troubling” and amounting to “professional misconduct.”

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