Loher v. Thomas
Filing
28
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 re 21 Findings and Recommendations. Signed by JUDGE LE SLIE E. KOBAYASHI on 05/31/2014. -- The Court ORDERS Respondent to release Petitioner within thirty days after the judgment in the instant case is filed, subject to appropriate release conditions, unless the State elects to retry Petitioner. Further, the Court ORDERS Respondent to report to the district court, within sixty days after the judgment in the instant case is filed, whether Petitioner was released or will be retried. (eps)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 Modified on 6/2/2014 : The Clerk's corrected the file date (eps).
IN THE UNITED STATES DISTRICT COURT
FILED IN THE
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
May 31, 2014
FOR THE DISTRICT OF HAWAII
FRANK O. LOHER,
)
)
Plaintiff,
)
)
vs.
)
)
TODD THOMAS,
)
)
)
Defendant.
_____________________________ )
SUE BEITIA, CLERK
CIVIL 11-00731 LEK-KSC
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
On October 2, 2013, the magistrate judge filed his
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 (“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”).
nos. 25, 26.]
[Dkt.
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.
BACKGROUND
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 (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 (2000), by imposing an
2
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-
3
720(1)(d) (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.:
1
Where not specifically noted, the facts herein are taken
from the Intermediate Court of Appeals of the State of Hawai`i
(“ICA”) opinions in Loher v. State, 118 Hawai`i 522, 193 P.3d 438
(Ct. App. 2008) (“Loher III”), and Loher v. State, No. 29818,
2011 WL 2132828 (Hawai`i Ct. App. May 31, 2011) (“Loher IV”).
2
Exhibit B1 comprises the first 100 pages of the Transcript
of Proceedings for November 14, 2000. Exhibit B2 comprises the
remaining pages, 101 through 217. Together they make up the
complete transcript for that day.
4
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.
5
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
6
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.
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.
3
Tachibana refers to the Hawai`i Supreme Court decision,
Tachibana v. State, 79 Hawai`i 226, 900 P.2d 1293 (1995), which
holds that, in every criminal case where the defendant does not
testify, the trial court must engage in a colloquy with the
defendant, advising him of his constitutional right to testify,
and obtaining an on-the-record waiver of that right.
7
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 other areas of
what the Court prohibited.
THE COURT: Court will stand in recess.
[Id. at 160-64.]
at 164-216.]
After the recess, Petitioner testified.
[Id.
On direct examination, he stated that he served in
the United States Army.
[Id. at 166.]
After direct, the court
granted the prosecution’s request to reconsider its ruling on a
motion in limine excluding evidence of Petitioner’s dishonorable
discharge, and Ms. Murphy elicited that testimony during crossexamination.
[Id. at 189-92.]
Further, she elicited
inconsistent statements between Petitioner’s testimony and a
statement Petitioner made to a detective the day after the
assault, and evidence regarding a missing log book at the halfway
house where Petitioner was living.
[Id. at 196-215.]
On the next day of trial, Thursday, November 16, 2000,
Petitioner presented his witnesses (his stepson and wife), the
prosecution presented three rebuttal witnesses, the parties made
their closing arguments, and the jury began deliberations.
[Answer, Exhs. C1, C2 (Trans. of 11/16/00 Tr. Proceedings
(“11/16/00 Tr. Trans.”).4]
The following day, Friday,
4
Exhibit C1 comprises the first eighty-five pages of the
Transcript of Proceedings for November 16, 2000. Exhibit C2
(continued...)
8
November 17, 2000, the jury found Petitioner guilty of Count I
and acquitted him of Count II.
[Id., Exh. D (Trans. of 11/17/00
Tr. Proceedings) at 4-5.]
On July 18, 2001, the trial court issued the judgment
of conviction and sentence.
[Id., Exh. F.]
Petitioner, with
Mr. Shintani’s assistance, appealed, but did not raise the Brooks
argument.
[Id., Exh. H (Petitioner’s opening brief on appeal).]
On April 21, 2003, the ICA affirmed Petitioner’s conviction.
State v. Loher, No. 24489, 2003 WL 1950475 (Hawai`i Ct. App. Apr.
21, 2003) (“Loher I”).
The Hawai`i Supreme Court initially
granted Petitioner’s application for a writ of certiorari, but
then dismissed it as improvidently granted on June 16, 2003.
[Id., Exhs. L, M].
II.
Rule 40 Petition
On October 18, 2005, Petitioner filed a pro se post-
conviction petition, pursuant to Haw. R. Penal P. 40, and for the
first time asserted that his trial counsel was ineffective for
forcing Petitioner to testify (“2005 Rule 40 Petition”).5
On
4
(...continued)
comprises the remaining pages, 86 through 172. Together they
make up the complete transcript for that day. There are,
however, a few pages missing.
5
Petitioner filed another Rule 40 Petition, also raising
the forced testimony issue, a year earlier on October 8, 2004
(“2004 Rule 40 Petition”). Respondent provided that document,
and not the 2005 Rule 40 Petition, with his Answer as Exhibit W.
Subsequently, Respondent filed a Notice of Errata, attaching the
(continued...)
9
March 16, 2006, the trial court rejected Petitioner’s claims
without a hearing as “patently frivolous and without a trace of
support either in the record or from other evidence submitted by
the Petitioner.”
[Id., Exh. Y (Order Denying Petition for Post-
Conviction Relief).]
Petitioner appealed.
On July 14, 2008, the ICA
affirmed, except it remanded to the circuit court for an
evidentiary hearing on Petitioner’s ineffective assistance of
appellate counsel claim.6
P.3d at 454-55.
Loher III, 118 Hawai`i at 538-39, 193
The ICA reasoned that, since Mr. Shintani had
not been given an opportunity to “explain his understanding of
the ‘forced testimony’ issue, and the issue has not been fully
briefed and argued at a hearing on the Rule 40 Petition, this
court is unable to determine why the issue was not raised.”
at 533, 193 P.3d at 449.
Id.
The ICA explained the need for remand,
5
(...continued)
correct, operative petition. [Filed 2/17/12 (dkt. no. 11).]
According to the Amended Petition, at ¶ 8, and Loher III, the
trial court dismissed the 2004 Rule 40 petition because
Petitioner had a Haw. R. Penal P. 35 petition already pending
before the trial court (“Rule 35 Petition”). The ICA ultimately
rejected the Rule 35 petition, which first raised the Apprendi
argument but not the Brooks argument, on February 11, 2005.
State v. Loher, No. 26000, 2005 WL 335234 (Hawai`i App. Ct.
Feb. 11, 2005) (“Loher II”).
6
The ICA held that, since Petitioner’s trial and appellate
counsel were different, Petitioner waived all claims of
ineffective assistance of Mr. Kugiya that he had not raised on
direct appeal. Ineffective assistance of Mr. Shintani was
properly before it. Loher III, 118 Hawai`i at 531, 193 P.3d at
447.
10
If an appealable issue is omitted, then both
the issues actually presented on appeal as well as
those omitted are evaluated in light of the entire
record, the status of the law and, most
importantly, counsel’s knowledge of both.
Counsel’s scope of review and knowledge of the law
are assessed, in light of all the circumstances,
as that information a reasonably competent,
informed and diligent attorney in criminal cases
in our community should possess. Counsel’s
informed decision as to which issues to present on
appeal will not ordinarily be second-guessed.
Counsel’s performance need not be errorless. If,
however, an appealable issue is omitted as a
result of the performance of counsel whose
competence fell below that required of attorneys
in criminal cases then appellant’s counsel is
constitutionally ineffective.
Id. (quoting Briones v. State, 74 Haw. 442, 466–67, 848 P.2d 966,
978 (1993)).
The ICA suggested that the Brooks claim might not have
been “potentially meritorious” at the time of the direct appeal
because exceptions to Brooks, as applied by the ICA in State v.
Kido, 102 Hawai`i 369, 76 P.3d 612 (Ct. App. 2003), might apply
to Petitioner’s case.
449.
Loher III, 118 Hawai`i at 533, 193 P.3d at
Those exceptions included: (1) whether Petitioner had
intended to testify all along; and (2) whether Petitioner caused
the exigency that required he testify first.
Id.
The ICA
concluded: “The bottom line is that in the absence of a
sufficient record on this appeal, including an opportunity for
[Mr. Shintani] to be heard, we must remand for the development of
such a record on the issue of whether [Petitioner] had
ineffective assistance of appellate counsel.”
11
Id. at 534, 193
P.3d at 450.
On September 8, 2008, the ICA remanded the 2005
Rule 40 Petition to the circuit court.
[Answer, Exh. GG.]
III. Evidentiary Hearing
The circuit court reviewing the Rule 40 petition (“Rule
40 court”) appointed Petitioner new counsel, Laura Yoshida, Esq.,
and a different circuit court judge from the one who presided
over Petitioner’s trial held the evidentiary hearing on
January 7, 2009 and January 28, 2009.
[Id., Exhs. JJ (Trans. of
1/7/09 Hrg. on Rule 40 Petition (“1/7/09 Hrg. Trans.”)), KK
(Trans. of 1/28/09 Hrg. on Rule 40 Petition (“1/28/09 Hrg.
Trans.”)).]
On January 7, 2009, Mr. Shintani testified that, at
the time of Petitioner’s appeal, he was not aware of the Brooks
opinion, but, if he had been, he “would have to have raised it.”
[1/7/09 Hrg. Trans. at 11-12.]
Mr. Shintani also testified that,
since Petitioner was arguing an alibi defense, Mr. Shintani
“surmise[d]” that Petitioner would testify to support it.
at 9-10.]
[Id.
But, he stated that he did not have an independent
recollection of whether Petitioner told him that he had planned
to testify.
[Id. at 10.]
Further, he stated that he did not
argue Kido in Petitioner’s brief because that opinion was not
published until four months after he filed Petitioner’s brief.
[Id. at 8-9.]
Next, Petitioner testified that he and Mr. Kugiya only
met once prior to trial, and the first time they discussed
12
whether Petitioner would testify was when the trial court ordered
him to testify then, or not at all.
Petitioner stated that he
told Mr. Kugiya he did not want to testify at trial, but he took
the stand because it was his understanding that, if he did not,
he would not be allowed to put on his other witnesses.
Petitioner testified that he never intended to testify at trial.
[Id. at 14-20.]
On January 28, 2009, the prosecution called Mr. Kugiya,
who testified that he and Petitioner met numerous times before
trial and Petitioner had always planned to testify at trial.
[1/28/09 Hrg. Trans. at 6-11, 14-15.]
Mr. Kugiya stated that
they planned to have Petitioner testify last, but that was not
possible because of the trial court’s directive.
Upon the
Rule 40 court’s questioning, Mr. Kugiya testified that the two
defense witnesses testified in substance as he had expected, but
even together they could not support a complete alibi defense.
Further, he testified that the defense witnesses were not in
court the first day of trial because the length of the
prosecution’s witness list and the severity of the charges led
him to believe that the prosecution’s case would continue into
the second day.
[Id. at 13-19.]
On April 14, 2009, the Rule 40 court issued its
Findings of Fact, Conclusions of Law, and Order Denying Petition
for Post-Conviction Relief (“FOF & COL”).
13
[Answer, Exh. LL.]
It
found Petitioner’s testimony that he did not intend to testify,
and only did so because he was “forced,” not credible, and
Mr. Kugiya’s testimony regarding the multiple meetings, trial
planning, and the decision to have Petitioner testify “no matter
what,” credible.
[Id. at FOF ¶¶ 3-12.]
The Rule 40 court also
found that the defense witnesses were not present the first day
of trial because of Mr. Kugiya’s error in estimating the
prosecution’s case.
[Id. at FOF ¶¶ 15-16.]
The court concluded
that the Kido exceptions applied and, therefore, Mr. Shintani’s
failure to raise the Brooks argument did not substantially impair
Petitioner’s constitutional rights.
[Id. at COL ¶¶ 6-9.]
May 31, 2011, the ICA affirmed the FOF & COL.
2132828, at *10.
On
Loher IV, 2011 WL
Relying heavily on the credibility
determinations of the Rule 40 court, it held that the Rule 40
court did not clearly err in finding that the Kido exceptions
applied and that Mr. Shintani was not ineffective.
Id. at *9.
STANDARD
I.
Objections to F&R
When a party objects to a magistrate judge’s findings
or recommendations, the district court must review de novo those
portions to which the objections are made and “may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”
28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673
14
(1980); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th
Cir. 2003) (en banc) (“[T]he district judge must review the
magistrate judge’s findings and recommendations de novo if
objection is made, but not otherwise.” (emphasis omitted)).
Under a de novo standard, a district court reviews “the
matter anew, the same as if it had not been heard before, and as
if no decision previously had been rendered.”
Freeman v.
DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006) (citation
omitted); see also United States v. Silverman, 861 F.2d 571, 576
(9th Cir. 1988).
The district court need not hold a de novo
hearing; however, it is the court’s obligation to arrive at its
own independent conclusion about those portions of the magistrate
judge’s findings or recommendations to which a party objects.
United States v. Remsing, 874 F.2d 614, 616 (9th Cir. 1989).
“[I]n providing for a ‘de novo determination’ rather
than de novo hearing, Congress intended to permit whatever
reliance a district judge, in the exercise of sound judicial
discretion, chose to place on a magistrate’s proposed findings
and recommendations.”
Raddatz, 447 U.S. at 676 (emphasis in
original) (citation omitted); accord Holder v. Holder, 392 F.3d
1009, 1022 (9th Cir. 2004) (citing Raddatz).
II.
Habeas Review
A district court may not grant a petition challenging a
state conviction on the basis of a claim that was reviewed on the
15
merits in state court unless the state court’s adjudication of
the claim:
(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; or
(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); see also Williams v. Taylor, 529 U.S. 362,
402–04 (2000).
For purposes of § 2254(d)(1), “[c]learly
established Federal law” is “the governing legal principle or
principles set forth by the Supreme Court at the time the state
court renders its decision[,]” Lockyer v. Andrade, 538 U.S. 63,
71–72 (2003) (citations omitted), and refers to the holdings,
rather than the dicta, of the Supreme Court’s decisions.
Williams, 529 U.S. at 412.
Under the “contrary to” clause of § 2254(d)(1), a
federal court may grant relief only when the state court “applies
a rule that contradicts Supreme Court case law or if it reaches a
conclusion different from the Supreme Court’s in a case that
involves facts that are materially indistinguishable.”
Nevarez
v. Barnes, No. 12-17060, 2014 WL 1646930, at *2 (9th Cir.
Apr. 25, 2014) (per curiam) (citing Williams, 529 U.S. at 405,
120 S. Ct. 1495, 146 L. Ed. 2d 389).
Under the “unreasonable
application” clause, a federal court may grant relief only “if
16
the state court identifies the correct governing legal principle
. . . but unreasonably applies that principle to the facts of the
prisoner’s case.”
Williams, 529 U.S. at 413.
The Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) does not
“prohibit a federal court from finding an application of a
principle unreasonable when it involves a set of facts different
from those of the case in which the principle was announced.
The
statute recognizes, to the contrary, that even a general standard
may be applied in an unreasonable manner.”
Panetti v.
Quarterman, 551 U.S. 930, 953 (2007).
[A]n unreasonable application of federal law is
different from an incorrect application of federal
law. Indeed, a federal habeas court may not issue
the writ simply because that court concludes in
its independent judgment that the relevant statecourt decision applied clearly established federal
law erroneously or incorrectly. Rather, that
application must be objectively unreasonable.
This distinction creates a substantially higher
threshold for obtaining relief than de novo
review. AEDPA thus imposes a highly deferential
standard for evaluating state-court rulings, and
demands that state-court decisions be given the
benefit of the doubt.
Nevarez, 2014 WL 1646930, at *2 (emphases in Renico) (quoting
Renico v. Lett, 559 U.S. 766, 773, 130 S. Ct 1855, 176 L. Ed. 2d
678 (2010)).
Under § 2254(d)(2), a state court’s decision may only
be found unreasonable 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
17
is supported by the record before the state court.”
Murray v.
Schriro, 745 F.3d 984, 999 (9th Cir. 2014) (citation 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, 123 S. Ct. 1029, 154 L. Ed. 2d 931
(2003); 28 U.S.C. § 2254(e)(1)).
Although only Supreme Court case law is binding, Ninth
Circuit precedent is “relevant persuasive authority in
determining whether a state court decision is objectively
reasonable.”
Chia v. Cambra, 360 F.3d 997, 1002–03 (9th Cir.
2004) (citation and quotation marks omitted).
While habeas
review focuses on the last reasoned state court decision, where
the “last reasoned decision adopted or substantially incorporated
the reasoning from a previous decision[,] . . . it is reasonable
for the reviewing court to look at both decisions to fully
ascertain the reasoning of the last decision.”
Barker v.
Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005).
DISCUSSION
I.
Petitioner’s Brooks Claim
A.
Brooks Violation
Petitioner argues that the trial court record shows
that the trial court clearly violated both his right to remain
silent and his right to due process.
18
He claims that it was an
unreasonable application of Brooks for the ICA, in Loher III, to
remand for an evidentiary hearing and, in Loher IV, to find no
violation, relying on new testimony inconsistent with the trial
record.
[Objections at 2-4, 6-8; Mem. in Supp. of Amended
Petition at 16-24.]
The Court agrees.
In Brooks v. Tennessee, 406 U.S. 605 (1972), the United
States Supreme Court held that a Tennessee statute, which
required a criminal defendant to testify before any of his
witnesses, violated the defendant’s Fifth and Fourteenth
Amendment rights to remain silent, and to due process.
The
Supreme Court reasoned that the “defendant’s choice to take the
stand carries with it serious risks of impeachment and crossexamination; it ‘may open the door to otherwise inadmissible
evidence which is damaging to his case.’”
Id. at 609 (quoting
McGautha v. California, 402 U.S. 183, 213, 91 S. Ct. 1454, 1470,
28 L. Ed. 2d 711 (1971)).
Since he cannot be certain of what his
witnesses will say,
a defendant may not know at the close of the
State’s case whether his own testimony will be
necessary or even helpful to his cause. Rather
than risk the dangers of taking the stand, he
might prefer to remain silent at that point,
putting off his testimony until its value can be
realistically assessed.
Id. at 610.
Requiring the defendant to testify first “casts a
heavy burden on a defendant’s otherwise unconditional right not
to take the stand.”
Id. at 610-11 (footnote omitted).
19
The
Supreme Court held that the statute violated “an accused’s
constitutional right to remain silent insofar as it require[d]
him to testify first for the defense or not at all.”
Id. at 612.
The Brooks Court also held that the statute violated
the defendant’s right to due process.
The Supreme Court
explained,
Whether the defendant is to testify is an
important tactical decision as well as a matter of
constitutional right. By requiring the accused
and his lawyer to make that choice without an
opportunity to evaluate the actual worth of their
evidence, the statute restricts the defense particularly counsel - in the planning of its
case. Furthermore, the penalty for not testifying
first is to keep the defendant off the stand
entirely, even though as a matter of professional
judgment his lawyer might want to call him later
in the trial. The accused is thereby deprived of
the ‘guiding hand of counsel’ in the timing of
this critical element of his defense. While
nothing we say here otherwise curtails in any way
the ordinary power of a trial judge to set the
order of proof, the accused and his counsel may
not be restricted in deciding whether, and when in
the course of presenting his defense, the accused
should take the stand.
Id. at 612-13 (emphasis added).
Respondent’s argument that “Petitioner conspicuously
fails to provide any authority to support [the] contention” that
Brooks recognizes two separate and distinct constitutional rights
is misplaced.
[Response at 4.]
The Supreme Court clearly
divided the Brooks decision into two sections: (1) the right to
remain silent; and (2) the right to due process.
Since then, the
Supreme Court has explicitly recognized that Brooks protects a
20
criminal defendant’s right to remain silent and his right to
“make independent decisions about how to conduct the defense.”
Strickland v. Washington, 466 U.S. 668, 686 (1984) (some
citations omitted) (citing Brooks, 406 U.S. at 612-13, 92 S. Ct.
at 1895, 32 L. Ed. 2d 358); see also United States v. Cronic, 466
U.S. 648, 659, n.25 (1984) (recognizing that Brooks protects
against “deni[al] of counsel at a critical stage of his trial”);
United States v. Panza, 612 F.2d 432, 439 (9th Cir. 1979)
(“[Brooks] guarantees counsel’s freedom to decide when a
defendant will take the stand.”).
Recently, two justices of the Hawai`i Supreme Court
also recognized criminal defendants’ “constitutional right to
control their defenses.”
State v. Adviento, 132 Hawai`i 123,
159, 319 P.3d 1131, 1167 (2014) (Nakayama J., Recktenwald, C.J.,
dissenting) (explaining that Brooks holds that criminal
defendants have a “right to present a defense free from
government interference”).
The record before the ICA on direct appeal, in Loher I,
and collateral appeal, in Loher III, clearly supports
Petitioner’s Brooks claim, that the trial court violated his
right to remain silent and to control his own defense.
Petitioner would not have taken the stand before his own
witnesses if the trial court had not forced him to do so.
Mr. Kugiya reasonably requested to wait until the next trial day
21
to start his case, but the trial court refused.
Trans. at 159-60.]
[11/14/00 Tr.
Mr. Kugiya objected that Petitioner had “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.”
[Id. at 160.]
He argued that the trial court was “actually forcing him to take
the stand because now we have nobody to call[.]”
[Id.]
Mr. Kugiya stated, “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.”
[Id. at
160-61.]
The trial court disagreed, and stated, “[y]ou may call
your client to testify or engage in Tachibana at this time, and
he may waive his testimony.
client.”
[Id. at 163.]
That is between you and your
The trial court recessed and, when
Petitioner took the stand, the prosecution elicited damaging
testimony.
[Id. at 192-215.]
The trial court’s actions were contrary to and an
unreasonable application of the Supreme Court’s holding in
Brooks.
first.
Mr. Kugiya did not intend to put Petitioner on the stand
Rather, he objected that he might not have Petitioner
testify at all for the very reason described in Brooks, that the
defense “may not need to call him because we can get everything
22
we need through the other witnesses” [11/14/00 Tr. Trans. at
160].
See Brooks, 406 U.S. at 610 (“a defendant may not know at
the close of the State’s case whether his own testimony will be
necessary”).
As in Brooks, Mr. Kugiya wanted to delay
Petitioner’s “testimony until its value [could] be realistically
assessed.”
See id.
The trial court forced Petitioner and
Mr. Kugiya to decide whether to have Petitioner testify by
forcing him to choose between testifying immediately or forgoing
testifying at all.
That is, it required Petitioner to “testify
first for the defense or not at all.”
See id. at 612.
This
violated Petitioner’s Fifth Amendment right to remain silent.
See id.
Even if Mr. Kugiya had planned to put Petitioner on the
stand, the trial court’s order that Petitioner testify first or
not at all, “restricted the defense in planning its case” and
“deprived [Petitioner] of the ‘guiding hand’ of counsel[.]”
See
id. at 612-13.
The ICA, in Loher III, had these facts before it.
The
trial record clearly made out a meritorious Brooks claim, which
was fully raised by Mr. Kugiya’s objections, and available to
Mr.
Shintani on appeal.
For these reasons, it was an
objectively unreasonable application of Brooks for the ICA to
23
remand for an evidentiary hearing, adding irrelevant evidence
eight years after trial.7
B.
Harmless Error
Respondent argues, and the magistrate judge agreed,
that the Brooks error was harmless.
30-31.]
[Response at 2, 7-8; F&R at
This misreads clearly established Supreme Court law
holding that Brooks violations require automatic reversal.
In Brooks, the Supreme Court concluded, “Petitioner,
then, was deprived of his constitutional rights when the trial
court excluded him from the stand for failing to testify first.
The State makes no claim that this was harmless error, Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967),
and petitioner is entitled to a new trial.”
406 U.S. at 612.
The state in Brooks did not argue the violation was harmless
because it was not.
The Supreme Court has since stated that Brooks
violations, like other constitutional violations where counsel is
7
Further, if the purpose of the evidentiary hearing was for
counsel to have the “opportunity to explain his or her actions in
an appropriate proceeding before the trial court judge,” see
Briones, 74 Haw. at 463, 848 P.2d at 977, there was no reason for
the testimony on remand to go beyond Mr. Shintani’s statement
that he did not omit Petitioner’s Brooks claim due to page
limits, but because he was not aware of Brooks (and if he had
been he “would have to have raised it”) [1/7/09 Hrg. Trans. at 6,
11-12]. There was no need to call Petitioner or Mr. Kugiya and
create new evidence as to the merit of the Brooks claim since Mr.
Shintani’s omission of the issue on appeal was clearly not
strategic.
24
“prevented from assisting the accused during a critical stage of
the proceeding[,]” do not require “any showing of prejudice[.]”
Cronic, 466 U.S. at 659 n.25.
The Supreme Court reasons that,
Actual or constructive denial of the assistance of
counsel altogether is legally presumed to result
in prejudice. So are various kinds of state
interference with counsel’s assistance. See
United States v. Cronic, 466 U.S. at 659, and
n.25, 104 S. Ct. at 2046–2047, and n.25.
Prejudice in these circumstances is so likely that
case-by-case inquiry into prejudice is not worth
the cost. 466 U.S., at 658, 104 S. Ct., at 2046.
Moreover, such circumstances involve impairments
of the Sixth Amendment right that are easy to
identify and, for that reason and because the
prosecution is directly responsible, easy for the
government to prevent.
Strickland, 466 U.S. at 692; see also Perry v. Leeke, 488 U.S.
272, 280 (1989) (explaining that Strickland “intended to make
clear that ‘[a]ctual or constructive denial of the assistance of
counsel altogether,’ is not subject to the kind of prejudice
analysis that is appropriate in determining whether the quality
of a lawyer’s performance itself has been constitutionally
ineffective” (alteration in Perry) (quoting Strickland, 466 U.S.
at 692, 104 S. Ct. at 2063-64, 80 L. Ed. 2d 674)); Bell v. Cone,
535 U.S. 685, 696 n.3 (2002) (quoting Cronic, including citation
to Brooks, that actual or constructive denial of counsel requires
no showing of prejudice).
The Supreme Court has held that constitutional
violations, like Brooks violations, where prejudice is presumed,
are “structural errors.”
In Brecht v. Abrahamson, 507 U.S. 619,
25
629-30 (1993), the Supreme Court clarified the standard for
setting aside a conviction for both “trial errors” and
“structural errors.”
Regarding structural errors, the Supreme
Court held: “The existence of such defects – deprivation of the
right to counsel, for example – requires automatic reversal of
the conviction because they infect the entire trial process.”
Id. (footnote omitted) (citing Arizona v. Fulminante, 499 U.S.
279, 309-10, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302 (1991)).
Since then, the Supreme Court has confirmed that automatic
reversal of a conviction “applies when . . . counsel [is] either
totally absent, or prevented from assisting the accused during a
critical stage of the proceeding.”
Wright v. Van Patten, 552
U.S. 120, 124-25 (2008) (some alterations in Wright) (citations
and quotation marks omitted).
It reasons, “[a] trial would be
presumptively unfair . . . where the accused is denied the
presence of counsel at ‘a critical stage,’ . . . that held
significant consequences for the accused.”
Bell, 535 U.S. at
695-96 (footnote and citations omitted).
The Bell Court
specifically cited Brooks as an example.
Id. at 696 n.3.
Petitioner brought a valid Brooks claim.
According to
Cronic and its progeny, Brooks violations are structural errors,
which require the presumption of prejudice and automatic
reversal.
For this reason, the magistrate judge erred in
applying a harmless error analysis, and this Court concludes that
26
Petitioner’s claim requires automatic reversal.
See, e.g., Frost
v. Van Boening, No. 11-35114, 2014 WL 1677820 (9th Cir.
Apr. 29, 2014) (reversing denial of habeas petition where
Washington Supreme Court found a structural error, but then
applied harmless error analysis); Musladin v. Lamarque, 555 F.3d
830, 838 (9th Cir. 2009) (holding Cronic’s “rule requiring
automatic reversal where a defendant was denied counsel at a
‘critical stage’ is binding on this court” and “applies in
proceedings governed by AEDPA” (footnote omitted)).
Even if harmless error analysis applies, the error was
not harmless.
Brooks recognizes that the choice to testify
“carries with it serious risks of impeachment and
cross-examination” and, in doing so, a defendant “may open the
door to otherwise inadmissible evidence which is damaging to his
case.”
406 U.S. at 609 (citation omitted).
Here, the prosecution elicited inconsistent statements
between Petitioner’s testimony and statements he made to a
detective the day after the assault, and evidence regarding a
missing log book where Petitioner was living at the time of the
assault.
[11/14/00 p.m. Trans. at 196-215.]
Further, Mr. Kugiya
opened the door to questioning on Petitioner’s dishonorable
discharge that was previously ruled inadmissible.
92.]
[Id. at 189-
Although these issues might have arisen if Petitioner
testified at the end of his case, this is speculative.
27
Also, it
is arguable that these issues may not have had the same effect
had Petitioner testified after his alibi witnesses, and may not
have arisen at all if Petitioner had decided not to testify.
Under Brecht, for all non-structural, constitutional
trial errors, the test is whether the error had a “‘substantial
and injurious effect or influence in determining the jury’s
verdict.’”
507 U.S. at 637 (quoting Kotteakos v. United States,
328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946)).8
Forcing Petitioner to take the stand resulted in his impeachment,
admission of previously inadmissible evidence, and undermining
his central defense.
There is “grave doubt” as to whether the
error had a substantial influence on the result.
Pulido, 555 U.S. 57, 65 (2008).
See Hedgpeth v.
Thus, even if harmless error
analysis applied to Petitioner’s Brooks violation, this Court
concludes that the violation was not harmless.
C.
Application of Kido
Since the trial record showed a clear Brooks error, it
was an unreasonable application of Brooks to remand and apply
Even assuming, arguendo, that Kido applied, the ICA’s
Kido.
rejection of Petitioner’s Brooks claim was an unreasonable
application of Supreme Court law.
8
Brecht applies to trial errors where the state court did
not reach the harmless error analysis. See Fry v. Pliler, 551
U.S. 112, 116 (2007).
28
In Kido, the ICA vacated a jury verdict convicting Kido
of two felonies and remanded for a new trial because the court
forced him to testify first in his defense under facts similar to
Petitioner’s case.
On the morning of the second day of trial,
the prosecution rested.
614.
Kido, 102 Hawai`i at 371, 76 P.3d at
As here, when Kido was unable to locate his only other
witness, the court forced him, over counsel’s objection, to take
the stand.
Id. at 371-72, 76 P.3d at 614-15.
Kido testified
and, after his witness testified, the jury convicted him.
Id. at
372-73, 76 P.3d at 615-16.
The ICA in Kido found a Brooks violation “because the
choice foisted upon Kido was effectively the same choice the
Tennessee statute forced upon Brooks.”
619.
Id. at 376, 76 P.3d at
It explained that the trial “boiled down to the credibility
of the witnesses,” and hearing his witness’s testimony first
“would surely have enlightened Kido’s decision whether to testify
in his own defense.”
Id. at 379, 76 P.3d at 622.
The ICA
concluded: “Had the court allowed [Kido’s witness] to testify
first, perhaps Kido would then have been well advised to leave
well enough alone.
The pertinent point is that he would have
been afforded the constitutionally-mandated means and opportunity
to make the decision, so informed.”
Id. (some citations omitted)
(citing Brooks, 406 U.S. at 608, 612-13, 92 S. Ct. 1891, 32 L.
Ed. 2d 358).
29
In reaching this decision, the ICA applied three
exceptions that some state and federal courts have applied in
denying Brooks claims: “(1) where the trial court required that
the defendant testify before only some of his witnesses,
(2) where the defendant’s decision whether to testify congealed
before the trial court’s action, and/or (3) where the defendant
himself created the exigency for taking his testimony first.”
Id. (footnotes omitted).
The ICA held that these exceptions did
not apply, and any delay caused by waiting for the defendant’s
witness, who was then testifying in another courtroom, would have
been “trifling.”9
Id.
Here, it was an unreasonable determination of the facts
to remand for more evidence on whether the Kido exceptions
applied since the record was already clear that they did not.10
The first Kido exception does not apply because the
trial court required Petitioner to testify before all of his
witnesses.
With regard to the second Kido exception, similar to
Kido, Petitioner’s decision to testify had not congealed before
the trial court’s action.
The trial record shows that Mr. Kugiya
9
This Court notes that neither the United States Supreme
Court nor the Ninth Circuit has recognized any of the exceptions
to the constitutional rights protected by Brooks that the ICA
applied in Kido.
10
If anything, Kido supports Petitioner’s claim. The ICA
in Kido found that the trial court violated Kido’s rights by
forcing him to testify first or not at all, in a short criminal
trial, which largely boiled down to credibility determinations.
30
stated that he and Petitioner had not decided whether Petitioner
would testify.
[11/14/00 Tr. Trans. at 160-61.]
And, although
the trial court stated, “defense counsel has also represented to
the Court that his client is going to testify[,]” [id. at 162,]
there is nothing in the record to support this statement.
Further, Mr. Kugiya did not promise in his opening statement that
Petitioner would testify [id. at 11-17] and, in Hawai`i, an alibi
defense is not an affirmative defense and does not require a
defendant to take the stand.
See State v. Cordeira, 68 Haw. 207,
210, 707 P.2d 373, 376 (1985); Haw. R. Penal P. 12.1.
Thus, the record on appeal was clear that Petitioner
had not decided to testify, unlike the records in the cases cited
in Kido.
See Kido, 102 Hawai`i at 377 n.8, 76 P.3d at 619 n.8;
see also United States v. Leon, 679 F.2d 534, 538 (5th Cir. 1982)
(“The record shows that counsel and Hicks already had discussed
the matter, and Hicks had decided to testify.”); State v. Turner,
751 A.2d 372, 384 (Conn. 2000) (“He indicated on the record that
he had decided to testify at the close of the state’s evidence
. . . .”); State v. Amos, 262 N.W.2d 435, 437 (Minn. 1978) (“in
his opening statement, . . . defense counsel made it clear that
defendant would testify”).
This Court also questions whether this second exception
from Kido is consistent with Brooks.
The Brooks Court emphasized
that a defendant “cannot be absolutely certain that his witnesses
31
will testify as expected or that they will be effective on the
stand.”
406 U.S. at 610-11.
Even a statement that a defendant
plans to testify should not be held against him.
As then-circuit
Judge Anthony Kennedy wrote:
At the outset of the trial, a defendant in good
faith may intend to testify, but it may be quite
reasonable for him to change his mind after
considering the course taken by the evidence. All
of us know a defendant may tell a brave story to
his counsel only to succumb to fear once the full
weight of the prosecution’s case becomes apparent.
In these instances a defendant and his counsel
often elect to invoke the self-incrimination
privilege despite an earlier plan to testify.
Thus, a defendant cannot be bound by any pretrial
statement of election; in fact, it would appear to
be unconstitutional to do so. See Brooks v.
Tennessee, supra. There is absolutely nothing to
guarantee the sincerity of such pretrial
assurances, and even when statements of election
are given in good faith, they may be based on
fictional assumptions.
United States v. Cook, 608 F.2d 1175, 1189 (9th Cir. 1979)
(Kennedy J., dissenting in part and concurring in part).11
Regarding the third exception, as in Kido, Petitioner
did not create the exigency.
Mr. Kugiya relied on the
prosecution’s representations and its lengthy witness list when
he told Petitioner’s witnesses to be present on the second day of
trial.
See 11/14/00 Tr. Trans. at 159, 163; Loher III, 118
11
In any event, even if the congealed exception was proper,
and Petitioner’s decision had congealed, it only implicates
Petitioner’s right to remain silent. The record shows that the
trial court violated Petitioner’s right to control his defense.
See supra Section I.A. Thus, Petitioner had a valid Brooks claim
and remand was unreasonable. See Brooks, 406 U.S. at 612-13.
32
Hawai`i at 524, 193 P.3d at 440 (pretrial memorandum stated trial
to take five to six days).
He did not disregard a court order,
or mislead the prosecution in any way that would warrant such a
severe penalty as denial of Petitioner’s constitutional rights.
See, e.g., Harris v. Barkley, 202 F.3d 169, 174 (2d Cir. 2000)
(finding no Brooks violation where defense disobeyed court
directive to have all witnesses present on a date certain);
Turner, 751 A.2d at 382 (no violation where defense did not
disclose alibi defense until a year after the prosecution
demanded notice and only after the prosecution rested).12
For all of these reasons, it was contrary to and an
unreasonable application of Brooks for the ICA to remand the case
to bolster the record since Kido supported Petitioner’s valid
Brooks claim, and the record was already clear that the Kido
exceptions did not apply.
D.
Hawai`i Rule of Evidence 611
In denying Mr. Kugiya’s objection to the directive that
Petitioner take the stand, the trial court relied on its
“discretion to exercise control over the mode and order of
interrogation.”
See 11/14/00 Tr. Trans. at 159-60.
However,
“Brooks did not ‘curtail[] in any way the ordinary power of a
trial judge to set the order of proof,’” see Menendez v. Terhune,
12
The Court further finds that remanding to determine
whether the delay was “trifling” was unreasonable, since nothing
at the evidentiary hearing would have resolved this issue.
33
422 F.3d 1012, 1031 (9th Cir. 2005) (alteration in Menendez)
(quoting Brooks, 406 U.S. at 613, 92 S. Ct. 1891, 32 L. Ed. 2d
358), and nothing in this order undermines the discretion of a
trial judge to control trial.
While Haw. Rev. Stat. § 626-1,
Rule 611, grants a trial court the right to “exercise reasonable
control over the mode and order of . . . presenting evidence[,]”
it does not trump a criminal defendant’s federal constitutional
rights.
Like Fed. R. Evid. 611, Haw. R. Evid. 611, is a
procedural rule that allows a trial court to operate with
judicial economy.
It does not permit a court to limit a
defendant’s constitutional rights.
The ICA has itself recognized this, stating that “the
accused and his counsel may not be restricted in deciding
whether, and when in the course of presenting his defense, the
accused should take the stand.”
Desmond v. Admin. Dir. of the
Courts, State of Hawai`i, 91 Hawai`i 212, 219, 982 P.2d 346, 353
(Ct. App.) (quoting Brooks, 406 U.S. 605, 92 S. Ct. at 1895, 32
L. Ed. 2d 358), rev’d in part on other grounds, 90 Hawai`i 301,
978 P.2d 739 (1998).
This Court’s decision that it was a constitutional
violation for the trial court to require Petitioner to testify
first or not at all does not “curtail[] in any way the ordinary
power of a trial judge to set the order of proof[.]”
34
See Brooks,
406 U.S. at 613.
Requiring a defendant to testify first is not
merely ordering proof at trial.
E.
Summary
Since the ICA’s remand and rejection of Petitioner’s
Brooks claim was contrary to and an unreasonable application of
Brooks, the Court GRANTS Petitioner’s Objections to the extent
that the F&R denied Petitioner relief on Ground I.
II.
Petitioner’s Ineffective Assistance Claim
Petitioner argues that Mr. Shintani was ineffective for
failing to raise Petitioner’s Brooks claim on direct appeal.
To
prevail on this claim, Petitioner must prove (1) “counsel acted
unreasonably in failing to discover and brief a merit-worthy
issue” and (2) “a reasonable probability that, but for appellate
counsel’s failure to raise the issue, the petitioner would have
prevailed in his appeal.”
See Moormann v. Ryan, 628 F.3d 1102,
1106 (9th Cir. 2010).
As discussed, the trial record is clear that the Brooks
claim had merit and thus it was unreasonable and prejudicial to
Petitioner that Mr. Shintani did not raise it.
The Court
therefore GRANTS Petitioner’s Objections to the extent that the
F&R denied Petitioner relief on Ground II.
CONCLUSION
On the basis of the foregoing, Petitioner’s Objections
to Magistrate Judge’s Findings and Recommendation, filed
35
November 14, 2013, is HEREBY GRANTED in its entirety.
Accordingly, the 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, filed October 2, 2013, is HEREBY ADOPTED IN PART AND
REJECTED IN PART to grant relief upon all three grounds in the
Amended Petition.
Petitioner’s Amended Petition under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody,
filed May 7, 2012, is HEREBY GRANTED in its entirety.
The Court
ORDERS Respondent to release Petitioner within thirty days after
the judgment in the instant case is filed, subject to appropriate
release conditions, unless the State elects to retry
Petitioner.13
Further, the Court ORDERS Respondent to report to
the district court, within sixty days after the judgment in the
instant case is filed, whether Petitioner was released or will be
retried.
//
//
//
//
13
See Herrera v. Collins, 506 U.S. 390, 403 (1993) (“The
typical relief granted in federal habeas corpus is a conditional
order of release unless the State elects to retry the successful
habeas petitioner[.]”).
36
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 31, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
FRANK O. LOHER VS. TODD THOMAS; CIVIL 11-00731 LEK-KSC; 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
37
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