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Loher v. Thomas

United States District Court, D. Hawaii

May 31, 2014

FRANK O. LOHER, Plaintiff,
TODD THOMAS, Defendant

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[Copyrighted Material Omitted]

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For Frank O. Loher, Petitioner: Peter C. Wolff, Office of the Federal Public Defender, Honolulu, HI.

For Todd Thomas, Respondent: Brian R. Vincent, LEAD ATTORNEY, Department of the Prosecuting Attorney-Honolulu, Honolulu, HI.

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Leslie E. Kobayashi, United States District Judge.

On October 2, 2013, the magistrate judge filed his Findings

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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 Hawai'i (" 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 Hawai'i (" 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" ). [Id. at pgs. 17-30.]

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.

I. Petitioner's Trial and Direct Appeal

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)

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(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.:

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, we're going to continue with the trial. I'm going to allow the defense to call [Petitioner] 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 [Petitioner] 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, [sic] we can call [Petitioner], 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 [Petitioner] 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.

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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 [sic] 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.
In addition, throughout this trial [Mr. Kugiya] has engaged in certain conduct in questioning by proceeding with questions where the Court has sustained and asking the witness's [sic] questions which they have not -- no personal knowledge, and then, in effect, testify by asking those witnesses who does [sic] not have personal knowledge regarding these matters.
And the Court on more than one occasion had to admonish [Mr. Kugiya] during the motions in limine. I had made clear to [Mr. Kugiya] that he was not to enter into certain areas. During this trial he proceeded to do so. In particular, asking about where the witnesses worked and now Court [sic] is faced with this situation. I do not want to make any stronger statements than that, but I am concerned.
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.[3] 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. It's 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.

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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. I would just like to say that I believe I have abided by the Court's rulings in motions in limine. I did not go into any ...

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