Frank Loher v. Todd Thomas
2016 U.S. App. LEXIS 10971
9th Cir.2016Background
- Frank O. Loher was tried in Hawaii for attempted sexual assault; prosecution rested early on day one and defense witnesses were not present, so the trial court denied a continuance and directed the defense either to have Loher testify immediately or waive his testimony. Loher testified and the jury convicted him; he received an extended-term sentence.
- Loher pursued multiple state remedies (direct appeal, Rule 35, Rule 40 collateral review) and the Hawaii Intermediate Court of Appeals (ICA) ultimately upheld the conviction and rejected a claim that the trial court unlawfully forced him to testify (a "Brooks" claim), after a remand and an evidentiary hearing on ineffective assistance of appellate counsel (IAAC).
- Loher filed federal habeas; the district court granted the writ on three grounds: forced testimony (Brooks), ineffective assistance of appellate counsel for failing to raise Brooks, and an Apprendi sentencing error; it ordered release or retrial, then was stayed pending appeal.
- The Ninth Circuit reviews the habeas grant de novo but applies AEDPA deferential standards: relief requires the state court decision to be contrary to or an unreasonable application of clearly established Supreme Court law, or based on unreasonable factual findings.
- The Ninth Circuit majority held that the ICA’s rejection of the Brooks claim was not an objectively unreasonable application of Supreme Court precedent (Brooks v. Tennessee) given (i) factual distinctions, (ii) trial-court management interests, and (iii) existing decisions recognizing limited exceptions; but concluded the State waived appellate argument against the district court’s grants on IAAC and Apprendi.
- The panel remanded: resentencing for the Apprendi error is required; the remedy for the IAAC claim requires further consideration (possible new appeal or other relief) and the district court should modify its conditional writ accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court unconstitutionally forced Loher to testify in violation of Brooks v. Tennessee | Loher: court’s order (testify now or not at all) forced him to waive the right to choose timing and impaired counsel’s tactical planning | State/ICA: Brooks addressed a categorical statute; here defendant’s witnesses were absent due to defense counsel’s responsibility and trial-management interests justified denial of continuance | Majority: ICA’s rejection of Brooks was not an objectively unreasonable application of Supreme Court precedent under AEDPA; no federal relief on Brooks |
| Whether appellate counsel rendered ineffective assistance by not raising Brooks on direct appeal (IAAC) | Loher: counsel’s failure to raise Brooks prejudiced him; would have created reasonable probability of success on appeal | State: (failed to brief this issue on appeal to Ninth Circuit) argued ICA’s decision was correct (in briefing below) | Ninth Circuit: State waived challenge to district court’s grant of IAAC relief by not arguing it in opening brief; therefore waiver precludes reversal here |
| Whether judge-found facts used to impose an extended-term sentence violated Apprendi | Loher: sentencing facts increasing penalty were not found by jury as required by Apprendi | State: (failed to contest in district-court objections and appellate brief) | Ninth Circuit: State waived challenge to district court’s Apprendi-based relief; remand for resentencing using constitutional procedure |
| Appropriateness of remedy (release/retrial vs. limited relief) | Loher/district court: earlier remedy ordered release or retrial for all violations | State: sought to defend district court’s relief (but waived some objections on appeal) | Ninth Circuit: because Brooks was rejected, but IAAC and Apprendi grants stand (by waiver), district court should not require release/retrial; resentencing for Apprendi and tailored remedy for IAAC (left to district court with guidance) |
Key Cases Cited
- Brooks v. Tennessee, 406 U.S. 605 (1972) (holding statute requiring defendant to testify before other defense witnesses violated Fifth and Fourteenth Amendments)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts that increase penalty beyond statutory maximum must be found by jury)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel)
- Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA’s highly deferential standard; state-court rulings entitled to fairminded deference)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (limitations on federal habeas review and AEDPA deference)