Kaua v. Frank

Decision Date11 January 2006
Docket NumberNo. 05-15059.,05-15059.
Citation436 F.3d 1057
PartiesWayman KAUA, Petitioner-Appellee, v. Clayton FRANK, Warden, Halawa Correctional Facility; State of Hawaii, Respondents-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Peter B. Carlisle, Prosecuting Attorney, and Loren J. Thomas, Deputy Prosecuting Attorney, Honolulu, HI, for the respondents-appellants.

Peter C. Wolff, Jr., Federal Public Defender, Honolulu, HI, for the petitioner-appellee.

Appeal from the United States District Court for the District of Hawaii; Susan Oki Mollway, District Judge, Presiding, D.C. No. CV-03-00432-SOM/BMK.

Before TROTT, T.G. NELSON, and PAEZ, Circuit Judges.

T.G. NELSON, Circuit Judge.

Appellants, the State of Hawaii and Clayton Frank,1 appeal the Hawaii district court's grant of Wayman Kaua's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm. The Hawaii sentencing court found that an extended sentence was necessary to protect the public in Kaua's case. Because the effect of this finding was to increase Kaua's sentence above that authorized by the jury's guilty verdict, we hold that Apprendi v. New Jersey2 required a jury to make the finding. In reaching the opposite conclusion, the Hawaii Supreme Court applied a rule — the "intrinsicextrinsic" analysis — contrary to the rule that Apprendi announced. The district court properly granted the writ.


In 1999, Kaua was indicted in state court in connection with a hostage standoff.3 A jury acquitted Kaua of attempted murder in the first degree, but convicted him of several other offenses. These offenses included class-A felonies carrying twenty-year maximum sentences, class-B felonies carrying ten-year maximum sentences, and class-C felonies carrying five-year maximum sentences.

After the jury returned its guilty verdict, the prosecution moved to extend Kaua's sentence pursuant to Hawaii Revised Statutes section 706-662(4)(a). That section provides for an extended sentence if "[t]he defendant is a multiple offender whose criminal actions were so extensive that a sentence of imprisonment for an extended term is necessary for protection of the public."4 The section further provides that a court must find that "[t]he defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for [a] felony" in order to impose an extended sentence.5

The Hawaii Supreme Court has ruled that section 706-662(4) requires the sentencing court to conduct a two-step process.6 First, the court must find that the defendant falls within the class of "multiple offenders" subject to an extended sentence.7 Under section 706-662(4)(a), this first step requires the court to find that the defendant is being sentenced for two or more felonies, or is already under sentence of imprisonment for a felony. Second, the court must determine whether an extended sentence is necessary for the protection of the public.8

After following the required two-step process, the sentencing court granted the prosecution's motion to extend Kaua's sentence. The court found that Kaua's prior conviction for being a criminal in possession of a firearm and ammunition and his new convictions satisfied section 706-662(4)(a). The court then found a number of specific facts, and from these facts determined that an extended sentence was necessary to protect the public. These facts included Kaua's history of substance abuse; his abuse of drugs shortly before the hostage standoff; his history of assaultive behavior; his inability to control his behavior while under the influence or while under stress; his access to firearms; his lack of experience using the weapon with which he perpetrated the standoff; and the strong possibility that he could have injured minors and innocent bystanders because of his inexperience.

The court then sentenced Kaua. It extended the sentence for each of the class-A felonies from the maximum twenty-year term to life imprisonment with the possibility of parole.9 The court extended Kaua's class-B felonies from maximum ten-year terms to twenty-year terms.10 Finally, it extended Kaua's class-C felonies from five-year terms to ten-year terms.11 The court ordered Kaua's sentences to run concurrently.

Kaua filed a timely notice of appeal with the Hawaii Supreme Court on February 28, 2000. On June 26, 2000, the United States Supreme Court decided Apprendi. Almost one year later, on May 1, 2001, the Hawaii Supreme Court affirmed Kaua's judgment of conviction and sentence. Although Apprendi already had been decided, Kaua had not briefed the case or raised any Apprendi issues in his direct appeal. Thus, the Hawaii Supreme Court did not address Apprendi when it affirmed Kaua's sentence.

On March 13, 2002, Kaua filed a Hawaii Rule of Penal Procedure 35 motion12 with the state trial court for correction of his sentence based on Apprendi. The trial court denied his motion. Kaua timely appealed to the Hawaii Supreme Court, which addressed Kaua's Apprendi claim and affirmed the trial court's denial in a published opinion.13 On August 12, 2003, Kaua filed a habeas corpus petition in federal district court in Hawaii to vacate his sentence pursuant to 28 U.S.C. § 2254. The district court granted his petition holding that the Hawaii Supreme Court's affirmance of his sentence was contrary to, and an unreasonable application of, Apprendi. The State timely appealed the district court's grant of the petition.

I. Standards of review

We review de novo the district court's grant of Kaua's petition for writ of habeas corpus.14 Under 28 U.S.C. § 2254(d)(1), a federal habeas petitioner can prevail only if he can show that the state court's adjudication of his claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established" Supreme Court case law.15 "Clearly established" law is the "governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision."16 A state court decision is "contrary to" clearly established law if the court "`applies a rule that contradicts the governing law set forth in [Supreme Court] cases.'"17 "We cannot avoid granting the writ . . . by positing an alternative reason for the state court's [decision] that is entirely distinct from the reason given by the state court, even if such different reason might have justified the state court's action."18

II. The Hawaii Supreme Court's decision was contrary to Apprendi

Kaua challenges the Hawaii Supreme Court's conclusion that Apprendi permits a judge, rather than a jury, to find the facts required to satisfy step two of section 706-662(4)'s sentencing process.19 The second step requires a sentencing judge to determine if extending the defendant's sentence is necessary for the protection of the public.20 This inquiry requires the court to find facts outside of those found by the jury that expose the defendant to an increased sentence.21 Because Apprendi held that any fact other than the fact of a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt,22 we agree with Kaua that a jury must find the facts required to satisfy step two.

The State argues that the public protection finding of step two is discretionary. In the State's view, the sentencing court's finding that a defendant has been convicted of prior felonies alone subjects the defendant to an extended sentence. Because Apprendi exempted the fact of a prior conviction from its ambit, the State contends that the state court's application of section 706-662(4) was constitutional.

Contrary to the State's arguments, however, Hawaii courts repeatedly have interpreted section 706-662(4) to require a two step process.23 In State v. Okumura, the Hawaii Supreme Court stated that both steps of the process "must be followed" when the prosecution seeks an extended sentence.24 Hawaii courts never have characterized step two as anything other than the finding and evaluation of facts.25 The State's reading of section 706-662(4), therefore, does not comport with the Hawaii Supreme Court's interpretation. In any case, the Hawaii Supreme Court did not base its dismissal of Kaua's Rule 35 motion on the arguments that the State advances. Because our review is limited to the "reason[s] given by the [Hawaii] court," we cannot adopt the State's "alternative reason" for affirming the Hawaii Supreme Court's decision.26

With respect to the Hawaii Supreme Court's decision, we disagree with its reasoning that the "extrinsic" nature of the factual findings required for step two exempt them from Apprendi's reach.27 Apprendi made irrelevant any distinction between facts based on their "intrinsic" or "elemental" quality for purposes of ascertaining whether the Sixth Amendment requires a jury to find them.28 Apprendi announced a new rule that focused on the effect of a court's finding of fact, not on the label the statute or the court applied to that fact.29 The United States Supreme Court plainly set forth this new rule, stating that "the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?"30 If so, the Sixth Amendment requires a jury, not a judge, to make the finding.31 Apprendi exempted only one finding — the fact of a prior conviction — from this "general rule."32

The sentencing court's public protection finding, coupled with the finding of multiple felonies, exposed Kaua to a sentence greater than the jury's guilty verdict authorized. Although it was proper for the court to make the multiple felony finding, under Apprendi, a jury should have made the public protection finding. The Hawaii Supreme Court's...

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22 cases
  • State v. White
    • United States
    • Hawaii Supreme Court
    • March 10, 2006
    ...district court) in Kaua v. Frank, 350 F.Supp.2d 848 (D.Haw.2004), and the United States Ninth Circuit Court of Appeals in Kaua v. Frank, 436 F.3d 1057 (9th Cir. 2006), have ruled that State v. Kaua, 102 Hawai`i 1, 72 P.3d 473 (2003), upon which the majority's opinion is premised, violated A......
  • Flubacher v. State
    • United States
    • Hawaii Supreme Court
    • March 21, 2018
    ...both the United States District Court for the District of Hawai'i and the Court of Appeals for the Ninth Circuit. See Kaua v. Frank, 436 F.3d 1057, 1062 (9th Cir. 2006) ; Kaua v. Frank, 350 F.Supp.2d 848, 849–50, 855-56 (D. Haw. 2004). Then, commencing after the decision in Blakely, our own......
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    • Hawaii Supreme Court
    • March 31, 2008
    ...District Court concluded that it was bound by the holding of the United States Court of Appeals for the Ninth Circuit in Kaua v. Frank, 436 F.3d 1057 (9th Cir. 2006), that Hawaii's extended term sentencing scheme violated Apprendi and that, in the instant matter, the violation did not const......
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    • Connecticut Supreme Court
    • September 11, 2007
    .... . ." Apprendi v. New Jersey, supra, 530 U.S. at 494, 120 S.Ct. 2348. The Ninth Circuit Court of Appeals' decision in Kaua v. Frank, 436 F.3d 1057, 1058 (9th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1233, 167 L.Ed.2d 144 (2007), holding that Hawaii's persistent offender statute vio......
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