Loher v. Thomas
Citation | 825 F.3d 1103 |
Decision Date | 17 June 2016 |
Docket Number | No. 14-16147,14-16147 |
Parties | Frank O. Loher, Petitioner–Appellee, v. Todd Thomas, Respondent–Appellant. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Brian R. Vincent, Deputy Prosecuting Attorney, Honolulu, Hawaii, for Respondent–Appellant.
Peter C. Wolff, Jr., Federal Public Defender, Honolulu, Hawaii, Petitioner–Appellee.
Before: Diarmuid F. O'Scannlain, Richard C. Tallman, and Milan D. Smith, Jr., Circuit Judges.
;
O'SCANNLAIN
, Circuit Judge:
We must decide whether a state appellate court unreasonably applied Supreme Court precedent in upholding a conviction and resulting sentence against a claim that the petitioner was forced to testify in violation of his rights to remain silent and to due process.
Petitioner Frank O. Loher was convicted in Hawaii state court of attempted sexual assault and given an extended-term sentence, all of which was affirmed on appeal.1 He subsequently filed this petition for a writ of habeas corpus in federal district court. Because his claims relate to matters of trial procedure, the trial proceedings must be set out in great detail.
On November 14, 2000, Loher's trial in Hawaii circuit court began at 9:06 a.m., and the State's first witness took the stand at approximately 9:30 a.m. The prosecution presented four witnesses and then rested at around 2:15 p.m. The court recessed until about 2:30 p.m. At that point, Loher's trial counsel, Neal Kugiya, requested a continuance to November 16, the following trial day, because none of Loher's witnesses was present in court. Kugiya argued that he had not anticipated that the prosecution's case would “finish this early ... because they have quite a number of people on the witness list,” and that he had attempted during the break to get witnesses to come to court, unsuccessfully. The trial court denied the request and the following exchange occurred between the court, Kugiya, and the prosecutor, Thalia Murphy:
[3
] at this time, and he may waive his testimony. That is between you and your client.
So I'm going to take a recess, and before we do that, is your client going to testify or is he going to waive his right to testify?
It was my understanding that we would not start our case until Thursday, and that's why I indicated to them that we would probably start Thursday morning.
After the recess, Loher testified beginning at 2:45 p.m. During cross-examination, prosecutor Murphy elicited damaging testimony from Loher.
After the trial concluded on November 16, the jury found Loher guilty of attempted sexual assault but acquitted him of attempted kidnapping. After trial, Kugiya moved to withdraw as counsel because Loher had filed a complaint against him with the Hawaii Office of Disciplinary Counsel. Randal I. Shintani was appointed as Loher's counsel and represented Loher in his sentencing hearing. Following such hearing, the circuit court granted the prosecutor's motion for an extended term of imprisonment, finding that Loher was a persistent offender under Hawaii Revised Statutes § 706–662(1)
.
With Shintani's assistance, Loher appealed to the Hawaii Intermediate Court of Appeals (“ICA”), claiming there was insufficient evidence to convict him, ineffective assistance of trial counsel, instructional error, and sentencing error. The Hawaii ICA affirmed Loher's conviction and sentence in Loher I
.
Loher then filed a pro se post-conviction motion in Hawaii circuit court pursuant to Hawaii Rule of Penal Procedure 35 (2002) (“Rule 35 Motion”), arguing in part that Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)
, and its progeny required that a jury—rather than the court—find the facts necessary to impose his extended sentence. After the circuit court denied the motion, Loher appealed, and the Hawaii ICA affirmed in Loher II.
Next, Loher filed a pro se post-conviction petition, also in Hawaii circuit court, under Hawaii Rule of Penal Procedure 40 (“Rule 40 Petition”) in which he raised dozens of claims. After the trial judge rejected Loher's claims without a hearing, Loher appealed, again pro se. Although Loher's briefing did not clearly set forth his claims, the Hawaii ICA addressed his arguments to the extent it understood them. In Loher III
, it construed Loher's petition as claiming that the trial court violated his constitutional rights by forcing him to testify and that Loher's appellate counsel rendered ineffective assistance by failing to raise the “forced testimony” issue in Loher's direct appeal. The court remanded for a hearing on Loher's ineffective assistance of appellate counsel (“IAAC”) claim.
On remand, the circuit court reviewing the Rule 40 petition (“Rule 40 court”) heard testimony from appellate counsel Shintani, Loher, and trial counsel Kugiya. The Rule 40 court received into evidence the trial transcript and Shintani's opening brief on appeal. After considering both the trial record and the record developed on remand, the Rule 40 court issued findings of fact and conclusions of law. It concluded that the trial court did not violate Loher's constitutional rights and that, therefore, Shintani's failure to raise the forced testimony issue did not constitute ineffective assistance of appellate counsel.
On appeal, the Hawaii ICA affirmed the Rule 40 court's decision in a reasoned opinion in Loher IV.
In due course, Loher filed a petition for a writ of habeas corpus in the federal district court. Upon review of a magistrate judge's findings and recommendations in
, the district court in Loher VI granted the writ on all three of Loher's claims: (1) that the trial court violated Loher's constitutional rights by forcing him to testify; (2) that Loher's appellate counsel rendered ineffective assistance for failing to raise the forced testimony issue; and (3) that the enhancement of his sentence based on judge-found facts violated Apprendi. Loher VI , 23 F.Supp.3d at 1186, 1200. Having granted relief on all three grounds, the district court ordered Hawaii to release or to retry Loher. Id. at 1200–01. It then stayed that order pending this appeal, which was timely filed.
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