Loher v. Thomas

Decision Date17 June 2016
Docket NumberNo. 14-16147,14-16147
Citation825 F.3d 1103
PartiesFrank O. Loher, Petitioner–Appellee, v. Todd Thomas, Respondent–Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Brian R. Vincent, Deputy Prosecuting Attorney, Honolulu, Hawaii, for RespondentAppellant.

Peter C. Wolff, Jr., Federal Public Defender, Honolulu, Hawaii, PetitionerAppellee.

Before: Diarmuid F. O'Scannlain, Richard C. Tallman, and Milan D. Smith, Jr., Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Tallman


Partial Concurrence and Partial Dissent by Judge Milan D. Smith, Jr.



, 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:

THE COURT: Under Rule 611 the Court has discretion to exercise control over the mode and order of interrogation. What the Court is going to do because there's more than enough time left in the day,[2] we're going to continue with the trial. I'm going to allow the defense to call [Loher] to testify, then after he completes testifying, he can call whatever witnesses that's on call that may arrive today. We can continue with that, and then we can call the remaining witnesses on Thursday morning.
KUGIYA: Okay. Well, I need to note my objection to that, Your Honor, because [Loher] does have a right not to testify, and based on testimony of other witnesses, there may not be a need for him to testify if we can get everything we need across from the other people.
So in this vein the Court is actually forcing him to take the stand because now we have nobody to call, and you're saying, Well, we can call [Loher], but as a strategic manner in planning for our case, he was going to be the last witness I call, and depending how it went with the other witnesses, we may not need to call him because we can get everything that we need through the other witnesses.
So, in fact, now that we're being forced to call him as first witness in a sense is prejudicial to [Loher] because he's being forced to testify when he, in essence, we had not decided fully whether or not he would testify for sure.
THE COURT: The Court does not find the argument persuasive. The Court believes that it was the responsibility or is the responsibility of counsel to determine when witnesses would be available.
Defense counsel was free to discuss with the State the witnesses called and when they would anticipate finishing their case.
Defense counsel has hopefully prepared for this case, so should be aware at the present time what the witnesses that he intends to call will testify. And having prepared and having a knowledge as to what they will say, since they are the defense witnesses, then they should be in the position to know whether the defendant should testify.
So the Court believes it is not persuasive that defense counsel should now argue to this Court, after the Court had denied his request to delay the trial till Thursday by saying that he does not know what his own witnesses will say and depending what they say, he will then make the decision whether his client's going to testify.
The Court would also note that during the pretrial conferences, as well as in the opening statement, the defendant has asserted an alibi that he was not present at the time, and that where the—his location would be during certain times defense counsel has also represented to the Court that his client is going to testify.
The Court is not persuaded by his argument and is concerned that this may be manipulative in order to obtain the relief that the Court had not granted.
KUGIYA: Well, if I can respond.
THE COURT: Excuse me, and the Court is unpersuaded by your argument. So we're going to proceed. You may call your client to testify, or if you wish, not to testify or engage in Tachibana


] 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?

KUGIYA: I'd like to discuss that matter with him.

MURPHY: I can leave the courtroom so that they can remain here.

KUGIYA: Your Honor, if I can just say we're not trying to delay this trial in any way. Its just that it was my understanding from conversations that the State would probably, you know, run the whole day. And so, you know, try not to inconvenience witnesses. I don't want them coming around today on Tuesday, knowing that we wouldn't get to them.

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.

THE COURT: I understand what you're saying.

KUGIYA: It's not for any purpose of delay....

THE COURT: Court will stand in recess.

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

Loher V

, 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.


We have jurisdiction under 28 U.S.C. §§ 1291

and 2253(a)...

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