Frank O. Loher, Petitioner-Appellee,
Todd Thomas, Respondent-Appellant.
and Submitted October 13, 2015 Honolulu, Hawaii
from the United States District Court No.
1:11-cv-00731-LEK-KSC for the District of Hawaii Leslie E.
Kobayashi, District Judge, Presiding
R. Vincent, Deputy Prosecuting Attorney, Honolulu, Hawaii,
C. Wolff, Jr., Federal Public Defender, Honolulu, Hawaii,
Before: Diarmuid F. O'Scannlain, Richard C. Tallman, and
Milan D. Smith, Jr., Circuit Judges.
panel affirmed in part and reversed in part the district
court's judgment granting Frank Loher's habeas corpus
petition challenging his Hawaii state conviction and sentence
for attempted sexual assault, and remanded with instructions.
district court 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 v. New Jersey, 530 U.S. 466
panel held that the Hawaii Intermediate Court of Appeals'
(Hawaii ICA's) rejection of Loher's claim under
Brooks v. Tennessee, 406 U.S. 605 (1972), that he
was forced to testify in violation of his rights to remain
silent and to due process, was not objectively unreasonable.
panel held that the trial court's creation, on remand
from the Hawaii ICA, of a post-conviction record on
(IAAC) claims, and the Hawaii ICA's reliance on the
post-conviction record, were not objectively unreasonable
under 28 U.S.C. § 2254(d)(1) and 2254(d)(2).
panel held that Hawaii waived its challenge to the district
court's grant of relief for ineffective assistance of
appellate counsel, and waived its challenge to Loher's
panel remanded to the district court with instructions to
modify its conditional writ to require Hawaii to release
Loher or to provide him with resentencing within a reasonable
period of time. The panel wrote that the district court
should consider what additional condition is required to
remedy the ineffective assistance of Loher's appellate
Tallman concurred in part and dissented in part. He dissented
from the part of Judge O'Scannlain's opinion which
declares that Hawaii has waived its challenge to the grant of
habeas relief on Loher's IAAC claim and suggesting that
the district court order a new direct appeal to reconsider
the Brooks and IAAC claims already decided against
Loher by the Hawaiian appellate courts. He disagreed with
Judge M. Smith's conclusion that the state court's
construction of Brooks was objectively unreasonable
under § 2254(d).
M. Smith concurred in part and dissented in part. He
concurred in the majority's holding that the government
has waived its challenges to Loher's IAAC and
Apprendi claims, as well as in the majority's
proposed remedy for those violations. He disagreed with the
majority's rejection of Loher's Brooks
claims, and would hold instead that the state court's
denial of relief was "contrary to, or an unreasonable
application" of the Supreme Court's holding in
SCANNLAIN, Circuit Judge:
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.
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. 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
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,  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 canr witnesses
that's on call that may arrive today. We can continue
with that, and then we can call the remaining witnesses on
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
Defense counsel was free to discuss with the State the
witnesses called and when they would anticipate finishing
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
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
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.
the recess, Loher testified beginning at 2:45 p.m. During
cross-examination, prosecutor Murphy elicited damaging
testimony from Loher.
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 §
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.
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 (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.
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.
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.
appeal, the Hawaii ICA affirmed the Rule 40 court's
decision in a reasoned opinion in Loher IV.
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.
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a)
and "review de novo the district court's grant of a
§ 2254 habeas petition." Wilkinson v.
Gingrich, 806 F.3d 511, 515–16 (9th Cir. 2015) (as
amended) (citing Doody v. Ryan, 649 F.3d 986, 1001
(9th Cir. 2011) (en banc)). We review the district
court's determination of the appropriate remedy for a
constitutional violation on a habeas petition for abuse of
discretion. Chioino v. Kernan, 581 F.3d 1182, 1184
(9th Cir. 2009).
prisoner's habeas petition "shall not be granted
with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the
(1)resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2)resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding."
28 U.S.C. § 2254(d). "This is a 'difficult to
meet' and 'highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions
be given the benefit of the doubt.'" Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (quoting
Harrington v. Richter, 562 U.S. 86, 102 (2011);
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
"'contrary to' and 'unreasonable application
of' clauses in § 2254(d)(1) are distinct and have
separate meanings." Moses v. Payne, 555 F.3d
742, 751 (9th Cir. 2009) (citing Lockyer v. Andrade,
538 U.S. 63, 73–75 (2003)). Under the "contrary
to" clause of § 2254(d)(1), a federal court may
grant relief only when "the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on
a question of law or if the state court decides a case
differently than [the ...