Thompson v. Thomas et al

Filing 78

ORDER GRANTING IN PART PETITIONER'S 28 U.S.C. § 2254 PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY re 72 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/29/12. -- "The State of Hawaii is directed to re sentence Thompson in a manner consistent with this order. In all other respects, the petition is DENIED. The Clerk of Court is directed to enter judgment in Thompsons favor with respect to the sentence and to close this case. The attorneys of record in this case are directed to ensure that the state court is notified of this ruling, and the Clerk of Court is additionally directed to send a certified copy of this order to the Clerk of the Circuit Court of the First Circuit, State of Hawaii." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Petitioner,
)
)
vs.
)
TODD THOMAS, Warden, Saguaro )
Correctional Facility; JODIE )
)
F. MAESAKA-HIRATA,
)
(substituted for CLAYTON
FRANK), Director, Department )
)
of Public Safety, State of
)
Hawaii; JOE W. BOOKER, JR.
)
(substituted for FRANK
)
LOPEZ), Deputy Director for
)
Corrections, Department of
)
Public Safety, State of
)
Hawaii; and DAVID M. LOUIE,
)
Attorney General, State of
)
Hawaii.
)
)
Respondents.
_____________________________ )
JAMES ALLEN THOMPSON,

CIVIL NO. 08-00218 SOM-KSC
ORDER GRANTING IN PART
PETITIONER’S 28 U.S.C. § 2254
PETITION FOR WRIT OF HABEAS
CORPUS BY A PERSON IN STATE
CUSTODY

ORDER GRANTING IN PART PETITIONER’S 28 U.S.C. § 2254
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
I.

INTRODUCTION.
Petitioner James Allen Thompson is serving concurrent

extended State of Hawaii sentences for twenty sexual assault and
two kidnapping convictions.

The longest of those sentences is

life imprisonment with the possibility of parole.

Pursuant to 28

U.S.C. § 2254, Thompson now seeks a writ of habeas corpus based
on Oregon v. Kennedy, 456 U.S. 667 (1982), and Apprendi v. New
Jersey, 530 U.S. 466 (2000).

Thompson contends that, under

Kennedy, his retrial was barred by double jeopardy when
prosecutorial misconduct caused a mistrial in his first trial.

He further makes an Apprendi argument, saying that his sentence
was wrongfully extended beyond the statutory maximum based on
facts not found by a jury.

The court agrees with Thompson on his

Apprendi claim, but disagrees that his retrial was barred by
Kennedy.

The court thus grants Thompson’s petition in part.

II.

FACTUAL BACKGROUND.
Thompson was convicted by a jury in the Circuit Court

of the First Circuit of the State of Hawaii on twenty counts:
seven counts of sexual assault in the first degree in violation
of Haw. Rev. Stat. § 707-730(1)(a); two counts of attempted
sexual assault in the first degree in violation of Haw. Rev.
Stat. §§ 705-705, 707-730(1)(a); eight counts of sexual assault
in the third degree in violation of Haw. Rev. Stat.
§ 707-732(1)(e); one count of sexual assault in the fourth degree
in violation of Haw. Rev. Stat. § 707-733(1)(b); and two counts
of kidnapping in violation of Haw. Rev. Stat. § 707-720(1)(d).
Index of Exhibits to Thompson 2254 Habeas Petition (“Index”),
Ex. A, ECF No. 51-2; Amended Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody at 4, ECF
No. 72.
Thompson was tried by a jury three times.

In the first

trial, which began on May 18, 1998, see Index at Ex. J at 2, a
mistrial was declared based on prosecutorial misconduct in the
form of the prosecutor’s cross-examination of Thompson.

2

The

prosecutor asked Thompson, “[W]hy is there so much pubic hair in
your car?”

Index at Ex. VV at 6; Index at Ex. H at Ex. A.

Although the trial court had admitted into evidence a “tape
lifting” from Thompson’s car that had hair on it, see Index at WW
at 19-22, there had been no mention of pubic hair.
VV at 7.

Index at Ex.

The trial court had earlier suppressed an analysis of

hair found in Thompson’s car because the prosecution had not
timely turned the report over to the defense.

See Index at Ex.

YY at 65-66; Answer to Amended Petition for Writ of Habeas Corpus
(“Answer”) at 7, ECF No. 74.

The trial court, finding the

prosecutor’s cross-examination question to have been prejudicial,
Index at Ex. H at Ex. A, declared a mistrial, but denied
Thompson’s motion to dismiss the indictment based on double
jeopardy upon determining that the prosecutor had not asked the
offending question with the intent of causing a mistrial.

Index

at Ex. J at 3.
The jury in Thompson’s second trial was hung.

A third

attempt to try the case was called off during jury selection when
a defense witness was indicted.

After a fourth jury selection

process yielded a new jury, the third trial ended in the
convictions noted above.
Thompson was sentenced on January 10, 2001.
at A.

Index

Pursuant to Haw. Rev. Stat. § 706-662(4)(a), the trial

court sentenced Thompson to prison terms beyond the statutory

3

maximums.

Index at Ex. A at 3-8.

At that time, section

706-662(4)(a) provided:
A convicted defendant may be subject to an
extended term of imprisonment under section
706-661, if the convicted defendant satisfies
one or more of the following criteria:
. . . .
(4) The defendant is a multiple offender
whose criminal actions were so extensive that
a sentence of imprisonment for an extended
term is necessary for protection of the
public. The court shall not make this
finding unless:
(a) The defendant is being sentenced for
two or more felonies or is already under
sentence of imprisonment for felony . . . .
Haw. Rev. Stat. Ann. § 706-662(4)(a) (LexisNexis 2001).

The

trial court considered Thompson a multiple offender because he
was being sentenced to two or more felonies.
at 4.

Index at Ex. A

The trial court also ruled that extended terms were

necessary for the protection of the public based on a number of
specific facts, including the violent nature of Thompson’s
crimes.

Id. at 4-5.
For the first-degree sexual assault counts and the

attempted first-degree sexual assault counts, the trial court
extended Thompson’s maximum sentence from twenty years to life in
prison with the possibility of parole.

For the sexual assault in

the third degree counts, the trial court extended Thompson’s
maximum sentence from five years to ten years in prison.

4

For the

kidnapping counts, the court extended Thompson’s maximum sentence
from ten years to twenty years in prison.

Thompson was also

sentenced to one year in prison for the one count of sexual
assault in the fourth degree.

Index, Ex. A; Petition at 4.

sentences are being served concurrently.

His

Id.

Thompson appealed his conviction and sentence to the
Hawaii Supreme Court.

On June 2, 2004, the Hawaii Supreme Court

affirmed in a summary disposition order.

Index at Ex. T; Hawaii

v. Thompson, 104 Haw. 386, 90 P.3d 883 (2004).

On June 2, 2005,

Thompson petitioned the trial court for post-conviction relief
under Rule 40 of the Hawaii Rules of Penal Procedure.
Ex. V.

His petition was denied on November 4, 2005.

Ex. W at Appendix A.

Index at
Index at

That order was affirmed by the Intermediate

Court of Appeals of the State of Hawaii on September 24, 2007, in
a summary disposition order.

Index at Ex. Z; Thompson v. Hawaii,

115 Haw. 476, 168 P.3d 606 (Ct. App. 2007).

The Hawaii Supreme

Court denied Thompson’s certiorari petition on February 13, 2008.
Index at Ex. AA.
On May 13, 2008, Thompson filed a § 2254 petition in
this court.

On May 19, 2008, because Thompson had filed a mixed

petition containing both exhausted and unexhausted claims, this
court stayed the action while Thompson sought resolution and
exhaustion of his unexhausted claims in state court.
Staying Action, ECF No. 10.

Order

The stay was lifted on August 30,

5

2011.

ECF No. 47.

On June 14, 2012, Thompson filed the amended

§ 2254 petition and supporting memorandum now before this court.
ECF Nos. 72, 73.
III.

LEGAL STANDARD.
The Antiterrorism and Effective Death Penalty Act,

28 U.S.C. § 2254, imposes a “highly deferential standard for
evaluating state-court rulings.”

Renico v. Lett, 130 S. Ct.

1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 334
(1997)).

It “demands that state-court decisions be given the

benefit of the doubt.”

Id. (quoting Woodford v. Visciotti, 537

U.S. 19, 24 (2002) (per curiam)).
Under § 2254(d):
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim-(1) resulted in a decision that
to, or involved an unreasonable
of, clearly established Federal
determined by the Supreme Court
States; or

was contrary
application
law, as
of the United

(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).
“A legal principle is ‘clearly established’ within the
meaning of [§ 2254(d)] only when it is embodied in a holding of
6

[the United States Supreme] Court.”
1171, 1173 (2010).

Thaler v. Haynes, 130 S. Ct.

A state court decision is “contrary to . . .

clearly established Federal law, as determined by the Supreme
Court,” when “the state court arrives at a conclusion opposite to
that reached by [the Supreme Court] on a question of law,” or
when “the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to [the Supreme Court].”
v. Taylor, 529 U.S. 362, 405 (2000).

Williams

Accord Thaler, 130 S. Ct.

at 1173-74.
A state court decision is “an unreasonable application
of clearly established Federal law” when “the state court
identifies the correct governing legal rule from [Supreme Court]
cases, but unreasonably applies it to the facts of the particular
. . . case,” or when “the state court either unreasonably extends
a legal principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.”
U.S. at 407.

Williams, 529

Accord Thaler, 130 S. Ct. at 1173-74; Tong Xiong v.

Felker, 681 F.3d 1067, 1074 (9th Cir. 2012).

The “unreasonable

application” clause “requires the state court decision to be more
than incorrect or erroneous.

The state court’s application of

clearly established law must be objectively unreasonable.”

7

Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citations omitted);
accord Tong Xiong, 681 F.3d at 1074.
For purposes of § 2254(d)(2), a state court's
determination of the facts may be deemed “unreasonable” only if
the federal district court is “convinced that an appellate panel,
applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the record
before the state court.”

Detrich v. Ryan, 677 F.3d 958, 972 (9th

Cir. 2012) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th
Cir. 2004) (brackets omitted)).

“Factual determinations by state

courts are presumed correct absent clear and convincing evidence
to the contrary.”

Cooper v. Brown, 510 F.3d 870, 919 (9th Cir.

2007) (quoting Miller–El v. Cockrell, 537 U.S. 322, 340 (2003);
28 U.S.C. § 2254(e)(1)).
Nor may a writ of habeas be granted “unless it appears
that . . . the applicant has exhausted the remedies available in
the courts of the State.”

28 U.S.C. § 2254(b)(1)(A).

Finally, relief may be granted on a federal habeas
petition only if the state court error caused “actual prejudice”
or had a “substantial and injurious effect or influence” in
determining the jury's verdict.
619, 637 (1993).

Brecht v. Abrahamson, 507 U.S.

In other words, relief may not be granted if a

petitioner shows only a reasonable possibility that an error
contributed to the verdict.

Id.

8

IV.

ANALYSIS.
Thompson seeks relief on two grounds.

First, based on

Oregon v. Kennedy, 456 U.S. 667 (1982), he argues that the state
courts should have examined the prosecutor’s subjective intent in
asking Thompson about pubic hair in his car and should have found
that, because the prosecution intended to cause a mistrial, a
retrial was barred by the double jeopardy clause of the Fifth
Amendment of the United States Constitution.

Second, based on

Apprendi v. New Jersey, 530 U.S. 466 (2000), Thompson argues that
he was deprived of his right under the Fourteenth Amendment of
the United States Constitution to due process and his Fifth
Amendment right to notice and a jury trial when the trial court
extended his sentence beyond the statutory maximums for his
convictions based on facts not found by a jury.
A.

The State’s Exhaustion Arguments are Barred by the
Law of the Case Doctrine.

As an initial matter, the State argues that Thompson’s
claims are barred because he failed to exhaust his remedies in
state court with respect to those claims.

This court, however,

has already ruled that Thompson’s Kennedy and Apprendi claims
have been exhausted.

In its order staying this action, this

court noted that Thompson had asserted his Kennedy claim on
direct appeal to the Hawaii Supreme Court.
at 5.

Order Staying Action

With respect to his Apprendi claim, this court explained

that Thompson had explicitly presented that claim in his Rule 40
9

petition, and implicitly presented it in his petition for
certiorari to the Hawaii Supreme Court.

Id. at 6-7.

This court

also explained that any failures by Thompson to cite to federal
law in his direct appeal and Rule 40 petition were excused under
the futility doctrine.

Id. at 8.

Acknowledging that this court has already ruled on the
exhaustion issues, the State asks this court to reconsider its
rulings.

The court declines to do so.

Under the doctrine of

“law of the case,” a court is generally precluded from
reconsidering an issue that has already been decided by the same
court, or a higher court in the identical case.

United States v.

Jingles, 682 F.3d 811, 816 (9th Cir. 2012); Rebel Oil Co. v.
Atlantic Richfield Co., 146 F.3d 1088, 1093 (9th Cir. 1998).

The

doctrine applies when the issue in question has been decided
explicitly or by necessary implication in the previous
disposition.

Id.

The exhaustion issues in this case were

explicitly decided in this court’s stay order.
This court has discretion to decline to apply the law
of the case doctrine only when “1) the first decision was clearly
erroneous; 2) an intervening change in the law has occurred; 3)
the evidence on remand is substantially different; 4) other
changed circumstances exist; or 5) a manifest injustice would
otherwise result.”

United States v. Alexander, 106 F.3d 874, 876

10

(9th Cir. 1997).

The State does not argue or demonstrate that

any of these circumstances exists.
Moreover, Thompson conceivably could have asked this
court to reconsider its ruling by filing a motion for
reconsideration under Local Rule 60.1.

Local Rule 60.1 provides,

“Motions for reconsideration of interlocutory orders may be
brought upon the following grounds: (a) Discovery of new material
facts not previously available; (b) Intervening change in law;
(c) Manifest error of law or fact.”

Local Rule 60.1 further

requires a reconsideration motion to be brought “not more than
fourteen (14) days after the court’s written order is filed.”
The State has not timely availed itself of a reconsideration
motion under Local Rule 60.1, and this court declines to treat a
response to Thompson’s petition as a proper vehicle for seeking
untimely reconsideration of earlier rulings stating that Thompson
has exhausted his Kennedy and Apprendi claims in state court.
B.

Thompson’s Retrial Was Not Barred by the Double
Jeopardy Clause.

The Double Jeopardy Clause of the Fifth Amendment
protects a criminal defendant from repeated prosecutions of the
same offense.

Kennedy, 456 U.S. at 672.

Although “[d]ouble

jeopardy ordinarily does not apply if a defendant obtains a
mistrial,” a “narrow exception . . . exists where the government
engages in prosecutorial misconduct ‘intended to provoke the
defendant into moving for a mistrial.’”
11

United States v. Lewis,

368 F.3d 1102, 1108 (9th Cir. 2004) (quoting Kennedy, 456 U.S.
667, 679 (1982)).

“This exception prevents prosecutors from

sinking a case they knew was doomed to end in an acquittal in the
hope of having better luck before a second jury.”

Id.

“Prosecutorial conduct that might be viewed as
harassment or overreaching, even if sufficient to justify a
mistrial on [a] defendant’s motion, . . . does not bar retrial
absent intent on the part of the prosecutor to subvert the
protections afforded by the Double Jeopardy Clause.”
456 U.S. at 675-76.

Kennedy,

A court is to make a factual finding that

the prosecutor actually intended to cause the defendant to move
for a mistrial.

Id. at 675.

Thompson argues that the Hawaii Supreme Court’s
affirmance of his conviction and sentence on direct appeal is
contrary to the rule set forth in Kennedy because the Hawaii
Supreme Court allegedly failed to actually apply the Kennedy
test.

Thompson complains that the Hawaii Supreme Court instead

applied its own test to determine whether double jeopardy barred
retrial in the face of prosecutorial misconduct.
This court does not view the state courts as having
acted contrary to federal double jeopardy law.

In its summary

disposition order on direct appeal, the Hawaii Supreme Court
stated: “[B]ased on State v. Pacheco, 96 Hawai`i 83, 97-98,
26 P.3d 572, 586-87 (2001), we hold that the trial court did not

12

err in denying Appellant’s motion to dismiss based on
prosecutorial misconduct.”

Index at Ex. T at 3.

In Pacheco, the

Hawaii Supreme Court, holding that a prosecutor’s misconduct did
not bar a retrial based on double jeopardy, applied the test it
had set forth in Hawaii v. Rogan, 97 Haw. 405, 984 P.2d 1231
(1999).

Under Rogan, “reprosecution of a defendant after a

mistrial . . . as a result of prosecutorial misconduct is barred
where the prosecutorial misconduct is so egregious that, from an
objective standpoint, it clearly denied a defendant his or her
right to a fair trial.”

Pacheco, 96 Haw. at 98, 26 P.2d at 587

(quoting Rogan, 91 Haw. at 423, 984 P.2d at 1249).
The Hawaii Supreme Court in Rogan said it was adopting
a more objective standard than set forth by the United States
Supreme Court in Kennedy.

91 Haw. at 424, 984 P.2d at 1248.

In

the Hawaii Supreme Court’s view, “the specific intent standard
[in Kennedy] does not adequately afford criminal defendants
protection from prosecutorial misconduct,” as a defendant would
seldom be able to prove that a prosecutor had the specific intent
to goad a defendant into moving for a mistrial.

Id.

Thus, the

Hawaii Supreme Court gave “broader protection under the Hawai’i
Constitution than that given by the federal constitution” and
held that “reprosecution is barred where, in the face of
egregious prosecutorial misconduct, it cannot be said beyond a

13

reasonable doubt that the defendant received a fair trial.”

Id.

at 423, 984 P.2d at 1249.
The Hawaii Supreme Court’s Rogan test encompasses the
United States Supreme Court’s Kennedy test.

Under Rogan, the

Hawaii Supreme Court looks for “egregious” misconduct.

A

prosecutor’s specific intent to goad a defendant into declaring a
mistrial qualifies as the kind of egregious conduct warranting
double jeopardy protection.

In applying the Rogan test in

Thompson’s case, the Hawaii Supreme Court in no way provided less
than Kennedy.

Far from being contrary to Kennedy, Rogan included

the Kennedy test and added to it.

For that reason, Thompson is

notably thin on what specifically in his case appeared benign or
not so egregious as to trigger the double jeopardy bar when
viewed objectively under Rogan, but that surely would have
justified a new trial if only it had been viewed subjectively
under Kennedy.
Thompson argues that, even if Rogan is not contrary to
Kennedy, this court should conclude that the double jeopardy bar
was violated because the Hawaii Supreme Court’s decision was an
unreasonable application of Kennedy.

Thompson contends that, by

failing to address this subject, the State has waived any
argument concerning it.

See Reply to Answer to Amended Petition

for Writ of Habeas Corpus at 7, ECF No. 75.

While the State does

indeed say in footnote 5 of its responsive memorandum that the

14

“unreasonable application” requirement is “not at issue,” that
does not mean that Thompson automatically prevails on this basis.
Answer at 26.

Thompson, as the party seeking relief, still has

the burden of establishing his entitlement to relief on the
“unreasonable application” basis.

He fails to meet this burden.

In denying Thompson’s motion to dismiss the indictment
on double jeopardy grounds, the trial court concluded that the
prosecutor’s question about the pubic hair in Thompson’s car was
not reasonably calculated to cause a mistrial.1
at 3.

Index at Ex. J

Based on this conclusion, the trial court held that

Thompson’s mistrial was not barred by double jeopardy.

This was

neither an unreasonable application of Kennedy as a legal matter
under § 2254(d)(1), nor an unreasonable determination as a
factual matter under § 2254(d)(2).
Under § 2254(e), a trial court’s factual findings are
presumed correct, and the petitioner has the burden of rebutting
that presumption by clear and convincing evidence.

Thompson does

not meet that standard here.
The trial court found that the prosecutor’s questioning
leading up to the improper question indicated that the question

1

At that time, Hawaii law barred retrial when the
defendant moved for mistrial based on prosecutorial misconduct
that was “designed to avoid an acquittal” or intended to deny the
defendant his or her constitutional right to a fair trial. See
Hawaii v. Baranco, 77 Haw. 351, 355, 884 P.2d 729, 733 (1994).
Rogan, decided subsequently, articulated a standard that the
Hawaii Supreme Court applied on Thompson’s appeal.
15

was not calculated to provoke a mistrial.

Index at J at 2-3.

The prosecutor had asked about a number of items that had been
placed into evidence, including “tape liftings” of trace evidence
from Thompson’s car.

Id.

The prosecutor’s improper question was

in reference to one of those “tape liftings” that had hair stuck
to it.

Id.
The trial court had also earlier ruled in a minute

order that the improper question was not asked to provoke a
mistrial.

Index at Ex. H at Ex. A.

The trial court, having had

ample opportunity to see the prosecutor in action, noted that the
prosecutor’s conduct until that point had been proper.

Id.

The

prosecutor offered as justification for the question his belief
that it was obvious that the hair on the tape was pubic hair.
See Index at WW at 8.

While the trial judge, like Thompson’s

trial counsel, rejected the proposition that the type of hair was
obvious to a lay person, the trial judge appears to have found
credible the prosecutor’s assertion of the prosecutor’s belief.
Thompson argues that the trial court should have found
specific intent because, Thompson says, it was apparent that the
prosecution wanted to try the case anew given how weak its
presentation had allegedly been.

But even if the prosecution’s

case was weak, this would not establish that the prosecutor
intended to provoke Thompson into seeking a mistrial.

Nothing in

the record indicates that the prosecutor subjectively thought his

16

case was weak.

It is only under the objective Rogan standard,

which Thompson complains violates Kennedy, that one might
conclude that the prosecution must have been seeking a mistrial.
Thus, for example, Thompson says that the prosecutor knew or
should have known that, in Hawaii v. Fukusaku, 85 Haw. 462, 946
P.2d 32 (1997), the Hawaii Supreme Court had held that hair
analysis was a proper subject for expert testimony.

But “should

have known” goes to an objective standard, not to the subjective
standard that Thompson claims should have been applied.
Moreover, Thompson appears to be reading Fukusaku as
barring any nonexpert testimony as to hair, which is more than
Fukusaku held.

Fukusaku affirmed a trial judge’s decision to

admit expert testimony on hair analysis without requiring proof
of the reliability of the analysis.

Fukusaku did not go so far

as to require expert testimony on everything having to do with
hair.

This court is by no means saying that a lay person could

correctly determine on mere visual examination that the hair in
the “tape lifting” in Thompson’s case was pubic hair.

This court

is instead questioning whether the prosecution knew or should
have known based on Fukusaku that expert testimony was required
in that regard.
Even applying the subjective standard Thompson says
should have been applied, the record does not establish an intent
to cause a mistrial.

Moreover, in making what was apparently a

17

credibility finding as to the prosecutor’s intent, the trial
court was evaluating the prosecutor using the very subjective
standard Thompson argues was required.
Under § 2254, this court must be “particularly
deferential” to a state court’s factual findings.
Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2004).

Taylor v.
It was not

unreasonable for the trial court to determine that the prosecutor
lacked the specific intent necessary for double jeopardy to bar
Thompson’s retrial.
Under either the “contrary to” or the “unreasonable
application” prong of § 2254(d)(1), or the “unreasonable
determination of the facts” test of § 2254(d)(2), Thompson is not
entitled to relief based on his double jeopardy claim.
C.

Thompson’s Sentence is Contrary to Apprendi.

Thompson next contends that the extension of his
sentence beyond the statutory maximum was contrary to the Supreme
Court’s holding in Apprendi.

Although the State says that

Thompson’s claims are without merit, it presents no argument in
opposition to Thompson’s Apprendi claim.

It states: “In the

event this Court discounts Respondents’ position that Thompson
failed to exhaust his Apprendi claim in the state courts,
Respondents assume that this Court will consider itself bound by
the Ninth Circuit Court of Appeals’ decision in Kaua v. Frank,
436 F.3d 1057 (9th Cir. 2006).”

Answer at 34.

18

Indeed, this

court is bound by Kaua, as well as Apprendi, and agrees with
Thompson that his sentence violates federal law under those
precedents.
In Apprendi, 530 U.S. at 490, the Supreme Court held
that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”

That holding applies both to elements of a

crime and sentencing factors.

“[T]he relevant inquiry is one not

of form, but of effect–-does the required finding expose the
defendant to a greater punishment than that authorized by the
jury’s guilty verdict?”

Id. at 494.

In Kaua, 436 F.3d at 1060-62, the Ninth Circuit held
that the extended sentencing law in effect when Thompson was
sentenced in 2001, Haw. Rev. Stat. § 706-662(4), violated
Apprendi.

Before Kaua, the Hawaii Supreme Court had interpreted

section 706-662(4) as requiring the sentencing court to apply a
two-step process.

Id. at 1059.

First, the sentencing court was

to find that the defendant fell within the class of “multiple
offenders” subject to an extended sentence.

Id.

Second, the

sentencing court was to determine whether an extended sentence
was necessary for the protection of the public.

Id.

The second

inquiry required the court to find facts outside those found by
the jury and exposed the defendant to an increased sentence.

19

Id.

at 1060.

The Ninth Circuit held:

“Because Apprendi held that

any fact other than the fact of a prior conviction that increases
the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury and proved beyond a reasonable doubt,
. . . a jury must find the facts required to satisfy step two.”
Id.

Thus, in Kaua, the sentencing court’s finding that an

extended sentence was necessary to protect the public was
improper, and the Hawaii Supreme Court’s affirmance of Kaua’s
extended sentence was contrary to Apprendi.

Id. at 1062.

In Thompson’s case, after finding that Thompson was a
multiple offender under section 706-662(4), the sentencing court
similarly found that an extended sentence was necessary for the
protection of the public.

It based its finding on a number of

specific facts, including the significant traumatization of
Thompson’s victims and the alarm caused within the community.
Index at Ex. A at 5.

Thompson’s sentencing, as well as his Rule

40 petition to the circuit court,2 occurred after Apprendi was
decided.

Thus, Thompson’s extended sentence and the state

2

Thompson did not challenge his extended sentence on
appeal of the denial of his Rule 40 petition. He explained in
his certiorari petition to the Hawaii Supreme Court that he did
not pursue that claim because it had been foreclosed by Hawaii
Supreme Court precedent. Indeed, even after the Ninth Circuit’s
ruling in Kaua on January 11, 2006, the Hawaii Supreme Court
maintained its position that section 706-662(4) was
constitutional. See Hawaii v. White, 110 Haw. 79, 129 P.3d 1107
(2006) (decided on March 10, 2006). Thompson filed his Rule 40
appeal on June 14, 2006. Index at Ex. W.
20

court’s denial of his Rule 40 petition with respect to his
extended sentence violated Apprendi and represented “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.”

28 U.S.C. § 2254(d).

The Apprendi error in this case was not harmless.
Under the harmless error test, a court is to determine if the
constitutional error in issue had “substantial and injurious
effect or influence in determining the jury’s verdict.”

Brecht,

507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)).

An error is not considered harmless “[w]hen a

federal judge in a habeas proceeding is in grave doubt about
whether a trial error of federal law had a substantial and
injurious effect or influence in determining the jury’s verdict.”
O’Neal v. McAninch, 513 U.S. 432, 436, (1995) (internal quotation
marks omitted).

“Grave doubt” exists if, “in the judge’s mind,

the matter is so evenly balanced that he feels himself in virtual
equipoise as to the harmlessness of the error.”

Id. at 435.

In

other words, an uncertain judge should treat the error as if it
had a “substantial and injurious effect or influence” on the
outcome and should therefore find the error to have been harmful.
Id. at 435-36.

Although Thompson was convicted of over twenty

counts of sexual assault, a reasonable jury could have considered
the statutory maximum sentence, twenty years in prison,

21

sufficient.
convictions.

The record does not indicate that Thompson had prior
Because this court cannot say that the Apprendi

error was harmless, the petition is granted with respect to the
extended sentence.
V.

CONCLUSION.
The court GRANTS in part Thompson’s petition for relief

under 28 U.S.C. § 2254.

The State of Hawaii is directed to

resentence Thompson in a manner consistent with this order.
all other respects, the petition is DENIED.

In

The Clerk of Court

is directed to enter judgment in Thompson’s favor with respect to
the sentence and to close this case.

The attorneys of record in

this case are directed to ensure that the state court is notified
of this ruling, and the Clerk of Court is additionally directed
to send a certified copy of this order to the Clerk of the
Circuit Court of the First Circuit, State of Hawaii.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 29, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Thompson v. Thomas; Civil No. 08-00218 SOM-KSC; ORDER GRANTING IN PART PETITIONER’S 28
U.S.C. § 2254 PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

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