Loher v. Thomas

Filing 54

OUTLINE OF COURT'S ORDER REGARDING ISSUES ON REMAND FROM THE NINTH CIRCUIT. Signed by JUDGE LESLIE E. KOBAYASHI on 08/24/2016. (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).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRANK O. LOHER,

)
)
Plaintiff,
)
)
vs.
)
)
TODD THOMAS,
)
)
)
Defendant.
_____________________________ )

CIVIL 11-00731 LEK-KSC

OUTLINE OF COURT’S ORDER REGARDING
ISSUES ON REMAND FROM THE NINTH CIRCUIT
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 (Ҥ 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.]
1

1182.

On June 17, 2016, the United States Court of

The 5/31/14 Order is also available at 23 F. Supp. 3d

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

2

It is worth briefly reviewing the relevant history of this
case. The Hawai`i Intermediate Court of Appeals (“ICA”) affirmed
Petitioner’s conviction on April 21, 2003. State v. Loher, No.
24489, 2003 WL 1950475 (Hawai`i Ct. App. Apr. 21, 2003) (“Loher
I”). Petitioner filed a Haw. R. Penal P. 35 petition, which was
denied by the ICA on February 11, 2005. State v. Loher, No.
26000, 2005 WL 335234 (Hawai`i App. Ct. Feb. 11, 2005) (“Loher
II”). On October 18, 2005, Petitioner filed a Haw. R. Penal P.
40 petition, which was rejected by the circuit court. The ICA
affirmed the circuit court’s decision, except that it remanded to
the circuit court for an evidentiary hearing on Petitioner’s
ineffective assistance of appellate counsel (“IAAC”) claim.
Loher v. State, 118 Hawai`i 522, 193 P.3d 438 (Ct. App. 2008)
(“Loher III”). Finally, the ICA affirmed the circuit court’s
finding on remand that Petitioner’s appellate counsel was not
ineffective. Loher v. State, No. 29818, 2011 WL 2132828 (Hawai`i
Ct. App. May 31, 2011) (“Loher IV”).
3

The Opinion is also available at 2016 WL 3361545.

4

The IAAC claim concerns Petitioner’s appellate counsel’s
failure to raise a Brooks claim on direct appeal. See Loher, 23
F. Supp. 3d at 1200. In the Opinion, the majority states:
Loher IV decided that Loher’s Brooks claim was not
meritorious on the basis of the post-conviction
record, and Section III of this opinion merely
concludes that such decision was not objectively
unreasonable. That is a low bar to clear.
Moreover, Section III says nothing about Loher
(continued...)
2

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.”
2016 WL 3361545, at *9, 13-14.

Loher,

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,

4

(...continued)
IV’s conclusion that Loher would not have
prevailed in his original direct appeal, based on
the trial record, if his counsel had raised a
Brooks claim or Loher IV’s consideration of
evidence outside the trial record for such
prejudice analysis. To the extent that the
district court’s remedy requires the State and the
state courts to expend resources to address
Loher’s Brooks claim, the blame will like squarely
with the State for failing to argue for reversal
of the district court’s grant of the writ with
respect to Loher’s IIAC claim.

Loher, 2016 WL 3361545, at *15 n.14.
3

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);
4

Lombard [v. Lynaugh], 868 F.2d [1475,] 1487 [(5th
Cir. 1989)] (formal physical presence of appellate
attorney is not appellate counsel; defendant
constructively denied assistance of counsel where
attorney filed document containing no arguments
going to merits of appeal).
152 F.3d at 1069, rev’d on other grounds, 528 U.S. 259 (2000).
In Lynch, the Second Circuit reasoned:
In general, the appropriate remedy for
ineffective assistance of appellate counsel is to
grant a new appeal. See, e.g., Claudio [v.
Scully], 982 F.2d [798,] 806 [(2d Cir. 1992)]; but
see Ramchair v. Conway, 601 F.3d 66, 78 (2d Cir.
2010). We do so here. However, because Lynch has
already served a 10-year term of imprisonment,
which, for the reasons discussed above, was
properly imposed for his convictions for secondand third-degree robbery, he remains incarcerated
solely on the flawed first-degree robbery
conviction. Thus, if we simply ordered a new
appeal without more, Lynch would remain imprisoned
based on a conviction, that the Appellate Division
is likely to reverse, after an appeal that could
easily consume much of the time remaining on his
sentence for the first-degree robbery conviction.
Accordingly, in light of the unusual circumstances
of this case and the prolonged delay in Lynch’s
first direct appeal, we instruct the district
court to order Lynch released pending his new
appeal. See Mathis v. Hood, 937 F.2d 790, 796 (2d
Cir. 1991).
789 F.3d at 320.

The Second Circuit reversed the district court,

and remanded the case “with instructions to issue a writ of
habeas corpus, unless, within one week of our mandate,” inter
alia, the State reinstated petitioner’s direct appeal and
released him from custody.

Id.

At a status conference on August 15, 2016, both
Petitioner’s counsel and Respondent’s counsel agreed that, here,
5

Petitioner’s IAAC claim should be addressed first.5

Respondent’s

counsel represented that, when the Apprendi violation occurred,
Petitioner was already serving a sentence for a prior conviction.
Further, in this case, apart from the extended sentence imposed
by the trial judge, Petitioner received a mandatory minimum
sentence to run consecutive to his already-existing sentence.
Thus, according to Respondent, Petitioner is not eligible for
parole until 2024.

Given the representations of counsel on both

sides, the facts of this case, and in lieu of supplemental
briefs, the Court will first address Petitioner’s IAAC claim by
ordering the reinstatement of his direct appeal.

If Petitioner’s

direct appeal is unsuccessful, Petitioner may still seek relief
based upon his Apprendi claim.
The Court therefore ORDERS Respondent to release
Petitioner unless Respondent:

files a motion to vacate Loher IV

within twenty-one days of the filing of this Order; and
reinstates Petitioner’s direct appeal on the Brooks issue within
ninety days of the filing of this Order.
CONCLUSION
The foregoing is an outline of the Court’s Order of the
issues on remand from the Ninth Circuit.

Respondent shall submit

any changes or corrections by no later than August 30, 2016.

5

Petitioner’s counsel represented that, if Petitioner’s
direct appeal is reinstated and it is successful, the issue of
resentencing would be moot.
6

Petitioner shall submit any changes or corrections, as well as
any objections to Respondent’s changes, by September 6, 2016.
The Court will thereafter issue its final order in this matter.
In the event that the parties do not respond as ordered, this
outline shall be deemed the Court’s final order.
IT IS SO ORDERED
DATED AT HONOLULU, HAWAII, August 24, 2016.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

FRANK O. LOHER VS. TODD THOMAS; CV 11-00731 LEK-KSC; OUTLINE OF
COURT’S ORDER REGARDING ISSUES ON REMAND FROM THE NINTH CIRCUIT

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