Loher v. Thomas
Decision Date | 31 May 2014 |
Docket Number | Civil No. 11–00731 LEK–KSC. |
Citation | 23 F.Supp.3d 1182 |
Parties | Frank O. LOHER, Plaintiff, v. Todd THOMAS, Defendant. |
Court | U.S. District Court — District of Hawaii |
Peter C. Wolff, Office of the Federal Public Defender, Honolulu, HI, for Plaintiff.
Brian R. Vincent, Department of the Prosecuting Attorney, Honolulu, HI, for Defendant.
ORDER GRANTING PETITIONER'S OBJECTIONS TO MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART AMENDED PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY; ADOPTING PART AND REJECTING IN PART THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION; GRANTING PETITIONER'S AMENDED PETITION; AND ORDERING RESPONDENT TO RELEASE PETITIONER FROM CUSTODY
On October 2, 2013, 2013 WL 8561780, the magistrate judge filed his Findings and Recommendation to Grant in Part and Deny in Part Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“F & R”). [Dkt. no. 21.] On November 14, 2013, Petitioner Frank O. Loher (“Petitioner”) filed his objections to the F & R (“Objections”). [Dkt. no. 23.] On December 10, 2013, Respondent Todd Thomas (“Respondent”), filed his response to Petitioner's Objections (“Response”), and on December 23, 2013, Petitioner filed his reply (“Reply”). [Dkt. nos. 25, 26.] This matter is suitable for disposition without a hearing pursuant to Rules LR7.2(e), LR74.2, and LR99.16.2(a) of the Local Rules of Practice of the United States District Court for the District of Hawaii (“Local Rules”). After careful consideration of the Objections, supporting and opposing memoranda, and the relevant legal authority, Petitioner's Objections are GRANTED, and the magistrate judge's F & R is ADOPTED IN PART AND REJECTED IN PART for the reasons set forth below. Accordingly, the Court GRANTS the Amended Petition, and ORDERS Respondent to release Petitioner from custody.
Petitioner filed his Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody on May 7, 2012 (“Amended Petition”). [Dkt. no. 16.] Petitioner raises three grounds for relief: (1) the Circuit Court of the First Circuit, State of Hawaii (“trial court”), violated his rights to due process and against self-incrimination, under the Fifth and Fourteenth Amendments to the United States Constitution and Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), by requiring Petitioner to testify as the first witness in his defense or not at all (“Ground I”); (2) appellate counsel, Randal I. Shintani, Esq., was ineffective, in violation of the Sixth and Fourteenth Amendments to the Constitution, by failing to raise Petitioner's Brooks claim on direct appeal (“Ground II”); and (3) the trial court violated Petitioner's rights to jury trial and due process, under the Sixth and Fourteenth Amendments to the Constitution and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by imposing an extended term of imprisonment based on judge-found facts (“Ground III”).
The magistrate judge recommended denying Petitioner relief as to Grounds I and II, but recommended granting the Amended Petition as to Ground III. [F & R at 1, 34.] Respondent does not object to the magistrate judge's recommendation to grant relief as to Ground III, [id. at 12–17 (Discussion, Section A.),] and that recommendation is HEREBY ADOPTED. Neither party objects to the magistrate judge's findings of background facts in the F & R, [id. at 2–12 (Background),] and those findings are HEREBY ADOPTED as well. Petitioner, however, objects to the magistrate judge's recommendation to deny relief as to Grounds I and II. [Id. at 17–33 (Discussion, B.-C.).] The remainder of this order discusses those objections.
The procedural history of this case is well known to both parties, and clearly set forth in the F & R. The pertinent facts are as follows.
On August 19, 1999, Petitioner was charged with: (1) Attempted Sexual Assault in the First Degree, in violation of Haw.Rev.Stat. §§ 705–500, 707–730(1)(a) (1993) (“Count I”); and (2) Attempted Kidnapping, in violation of Haw.Rev.Stat. § 707–720(1)(d) (1993) (“Count II”).1 On Tuesday, November 14, 2000, Petitioner's trial began at approximately 9:00 a.m., and the prosecution's first witness took the stand at approximately 9:30 a.m. [Answer, filed 1/24/12 (dkt. no. 8), Exhs. B1, B2 (Trans. of 11/14/00 Tr. Proceedings (“11/14/00 Tr. Trans.”)) at 3, 18.2 ] The prosecution presented four witnesses and then rested at approximately 2:10 p.m. [Id. at 158.] At approximately 2:30 p.m., after a fifteen-minute recess, Petitioner's trial counsel, Neal Kugiya, Esq., requested a continuance to the following trial day, Thursday, explaining that none of Petitioner's witnesses were present in court that day. [Id. at 159.] He 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, unsuccessfully, to contact witnesses at the break. [Id. ] The trial court denied the request and the following exchange occurred between the court, Mr. Kugiya, and deputy prosecuting attorney, Thalia Murphy, Esq.:
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Loher v. Thomas: a Criminal Defendant's Right to "wait-and-see" What Other Defense Witnesses Say Before Taking the Witness Stand
...Frank Loher. In August 1999, Loher was charged with first-degree attempted sexual assault and attempted kidnapping. Loher v. Thomas, 23 F. Supp. 3d 1182, 1186-87 (D. Haw. 2014) ("Loher"). His trial began at 9:00 a.m. on November 14, 2000, and the government rested its case approximately fiv......