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Loher v. Thomas

United States District Court, D. Hawaii

August 24, 2016

FRANK O. LOHER, Plaintiff,
v.
TODD THOMAS, Defendant.

          OUTLINE OF COURT'S ORDER REGARDING ISSUES ON REMAND FROM THE NINTH CIRCUIT

          Leslie E. Kobayashi United States District Judge.

         On May 7, 2012, Petitioner Frank O. Loher (“Petitioner”) filed an Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“§ 2254 Petition”). [Dkt. no. 16.] On May 31, 2014, the Court issued its 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 in 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 (“5/31/14 Order”). [Dkt. no. 28.[1] The Clerk's Office entered judgment on June 13, 2014, and Respondent Todd Thomas (“Respondent”) filed a Notice of Appeal the same day. [Dkt. nos. 30, 29.] On June 17, 2016, the United States Court of Appeals for the Ninth Circuit issued its opinion (“Opinion”).[2][Dkt. no. 48.[3]

         The Ninth Circuit held that: (1) “the Hawaii ICA's rejection of Loher's Brooks [v. Tennessee, 406 U.S. 605 (1972), ] claim was not objectively unreasonable”; (2) “[b]ecause Hawaii has failed to argue this independent IAAC issue specifically and distinctly, it has waived its challenge to the district court's grant of relief on Ground II”;[4] and (3) “[t]he State's failure to object and its affirmative invitation to adopt the magistrate's recommendation constitute waiver of its challenge to Loher's Apprendi [v. New Jersey, 530 U.S. 466 (2000), ] claim.” Loher, 2016 WL 3361545, at *9, 13-14. The Ninth Circuit also offered the Court guidance on how to proceed on remand:

B
. . . . Because the writ will now be granted solely with respect to the Apprendi and IAAC claims, a new trial would no longer be tailored to such constitutional violations and would improperly grant Loher a windfall. As a result, on remand, the district court's conditional writ should not require the state to release or retry Loher.
C
We conclude that the appropriate remedy for a sentencing error such as an Apprendi violation is resentencing “utilizing a constitutionally sound procedure.” See Chioino [v. Kernan], 581 F.3d [1182, ] 1186 [(9th Cir. 2009)] (concluding that resentencing by the state trial court is the appropriate remedy for a violation of Apprendi's progeny, Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007)).
D
The appropriate remedy is not as clear for ineffective assistance of appellate counsel. The district court should consider the appropriate remedy in light of supplemental briefing. On remand, we suggest that the district court consider Robbins v. Smith, 152 F.3d 1062, 1068-69 (9th Cir. 1997); rev'd on other grounds, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Lynch v. Dolce, 789 F.3d 303, 320 (2d Cir. 2015) (“In general, the appropriate remedy for ineffective assistance of appellate counsel is to grant a new appeal.”); and, obviously, any other authorities that the parties bring to its attention.
In conclusion, we remand 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. In addition, the district court should consider what additional condition is required to remedy the ineffective assistance of Loher's appellate counsel.

Id. at *14-15 (footnotes omitted).

         In Robbins, the Ninth Circuit held:

Because the district court should have addressed the claims of trial error first, it might not have needed to address Robbins's claims of appellate error as well. Because it did address the appellate claims, however, and because it decided those questions correctly, it is in the interest of judicial economy and efficiency to affirm them now. If trial error is found to have occurred and to require vacation of the conviction, the appellate errors will become immaterial. If no such trial errors are found, however, the district court's original order will again become applicable. Cf. Penson [v. Ohio], 488 U.S. [75, ] 88-89, 109 S.Ct. 346 [(1988)] (the actual or constructive denial of assistance of counsel is presumed to result in prejudice); Lombard [v. Lynaugh], 868 F.2d [1475, ] 1487 [(5th Cir. 1989)] ...

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