Frаnk O. LOHER, Petitioner-Appellee, v. Todd THOMAS, Respondent-Appellant.
No. 14-16147
United States Court of Appeals, Ninth Circuit.
Argued and Submitted October 13, 2015 Honolulu, Hawaii. Filed June 17, 2016.
1103
Peter C. Wolff, Jr., Federal Public Defender, Honolulu, Hawaii, Petitioner-Appellee.
Partial Concurrence and Partial Dissent by Judge TALLMAN;
Partial Concurrence and Partial Dissent by Judge MILAN D. SMITH, Jr.
OPINION
O‘SCANNLAIN, Circuit Judge:
We must decide whether a state appellate court unreasonably applied Supreme Court precedent in upholding a conviction and resulting sentence against a claim that the petitioner was forced to testify in violation of his rights to remain silent and to due process.
I
Petitioner Frank O. Loher was convicted in Hawaii state court of attempted sexual assault and given an extended-term sentence, all of which was affirmed on appeal.1 He subsequently filed this petition for a writ of habeas corpus in federal district court. Because his claims relate to matters of trial procedure, the trial proceedings must be set out in great detail.
A
On November 14, 2000, Loher‘s trial in Hawaii circuit court began at 9:06 a.m., and the State‘s first witness took the stand at approximately 9:30 a.m. The prosecution presented four witnesses and then rested at around 2:15 p.m. The court recessed until about 2:30 p.m. At that point, Loher‘s trial counsel, Neal Kugiya, requested a continuance to November 16, the following trial day, because none of Loher‘s witnesses was present in court. Kugiya 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 during the break to get witnesses to come to court, unsuccessfully. The trial court denied the request and the following exchange occurred between the court, Kugiya, and the prosecutor, Thalia Murphy:
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,2 we‘re going to continue with the trial. I‘m going to allow the defense to call [Loher] 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 [Loher] 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, we can call [Loher], but as a strategic manner in planning for our case, he was going to be the lаst 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 [Loher] 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.
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 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 аn 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.
...
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 Tachibana3 at this time, and he may waive his testimony. 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. Its 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.
THE COURT: I understand what you‘re saying.
KUGIYA: It‘s not for any purpose of delay....
After the recess, Loher testified beginning at 2:45 p.m. During cross-examination, prosecutor Murphy elicited damaging testimony from Loher.
After the trial concluded on November 16, the jury found Loher guilty of attempted sexual assault but acquitted him of attempted kidnapping. After trial, Kugiya moved to withdraw as counsel beсause Loher had filed a complaint against him with the Hawaii Office of Disciplinary Counsel. Randal I. Shintani was appointed as Loher‘s counsel and represented Loher in his sentencing hearing. Following such hearing, the circuit court granted the prosecutor‘s motion for an extended term of imprisonment, finding that Loher was a persistent offender under
B
With Shintani‘s assistance, Loher appealed to the Hawaii Intermediate Court of Appeals (“ICA“), claiming there was insufficient evidence to convict him, ineffective assistance of trial counsel, instructional error, and sentencing error. The Hawaii ICA affirmed Loher‘s conviction and sentence in Loher I.
C
Loher then filed a pro se post-conviction motion in Hawaii circuit court pursuant to
D
Next, Loher filed a pro se post-conviction petition, also in Hawaii circuit court, under
On remand, the circuit court reviewing the Rule 40 petition (“Rule 40 court“) heard testimony from appellate counsel Shintani, Loher, and trial counsel Kugiya. The Rule 40 court received into evidence the trial transcript and Shintani‘s opening brief on appeal. After considering both the trial record and the record developed on remand, the Rule 40 court issued findings of fact and conclusions of law. It concluded that the trial court did not violate Loher‘s constitutional rights and that, therefore, Shintani‘s failure to raise the forced testimony issue did not constitute ineffective assistance of appellate counsel.
On appeal, the Hawaii ICA affirmed the Rule 40 court‘s decision in a reasoned opinion in Loher IV.
E
In due course, Loher filed a petition for a writ of habeas corpus in the federal district court. Upon review of a magistrate judge‘s findings and recommendations in
II
A
We have jurisdiction under
B
A state prisoner‘s habeas petition “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 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.”
1
The “‘contrary to’ and ‘unreasonable application of clauses in § 2254(d)(1) are distinct and have separate meanings.” Moses v. Payne, 555 F.3d 742, 751 (9th Cir. 2009) (citing Lockyer v. Andrade, 538 U.S. 63, 73-75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). Under the “contrary to” clause of
Under the “unreasonable application” clause of
Importantly, a state court does not unreasonably apply the Supreme Court‘s holdings by refusing to extend a legal principle to a new context. See Woodall, 134 S.Ct. at 1706. While the “difference between applying a rule and extending it is not always clear, ... [t]he critical point is that relief is available under § 2254(d)(1)‘s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement’ on the question.” Id. at 1706-07 (citations omitted).
2
Under
A state-court decision “will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (emphasis added). “While ‘not impossible to meet,’ that is a ‘daunting standard—one that will be satisfied in relatively few cases,’ especially because we must be ‘particularly deferential to our state-court colleagues.‘” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting Taylor, 366 F.3d at 1000). Thus, a “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). And we “may not second-guess a state court‘s fact-finding process unless, after review of the state-court record,” we determine “that the state court was not merely wrong, but actually unreasonable.” Taylor, 366 F.3d at 999.
Thus, when “a petitioner challenges the substance of the state court‘s [factual] findings, ‘it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate pаnel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.‘” Hibbler, 693 F.3d at 1146 (quoting Taylor, 366 F.3d at 1000). And when a petitioner challenges “the state court‘s procedure, mere doubt as to the adequacy of the state court‘s findings of fact is insufficient; we must be satisfied that any appellate court to whom the defect in the state court‘s fact-finding process is pointed out would be unreasonable in holding that the state court‘s fact-finding process was adequate.” Id. at 1146-47 (internal quotation marks and alterations omitted).
C
When reviewing a habeas petition, “we look to the last reasoned state-court decision.” Miller v. Blacketter, 525 F.3d 890, 894 n. 2 (9th Cir. 2008) (quoting Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003)). Here, the last reasoned state court decision is the unpublished, post-remand decision of the Hawaii ICA, Loher IV.
III
A
Loher first argues that the Hawaii ICA‘s rejection of his “forced testimony” claim involved an unreasonable application of Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972).
1
In Brooks, the Supreme Court held that a Tennessee statute, which required a criminal defendant to testify before any of his witnesses, violated the defendant‘s rights to remain silent and to due process. See 406 U.S. at 610-13. It reasoned that the “defendant‘s choice to take the stand carries with it serious risks of impeachment and cross-examination; 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, 28 L.Ed.2d 711 (1971)). Since a defendant cannot be certain of what his witnesses will say, he “may not know at the close of the State‘s cаse whether his own testimony will be necessary or even helpful to his cause.” Id. at 610. “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. Keeping the defendant “off the stand entirely unless he chooses 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). The Court held that the Tennessee 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 concluded that the statute violated the defendant‘s right to due process. It 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.
2
In Loher IV, the Hawaii ICA reviewed two of its prior decisions applying Brooks to a trial court‘s ruling that a defendant testify first or not at all: State v. Kido, 102 Hawai‘i 369, 76 P.3d 612 (Haw. Ct. App. 2003), and State v. Sale, 110 Hawai‘i 386, 133 P.3d 815 (Haw. Ct. App. 2006). Loher IV, 2011 WL 2132828, at *4, *6-8.
In Kido, the defendant wanted to call a witness who was in the same courthouse, but was occupied in a different hearing. See 76 P.3d at 614-15. When the witness was not immediately available, the trial
In Loher IV, the Hawaii ICA noted such “generally-recognized exceptions” to Brooks and then upheld the Rule 40 court‘s factual findings and legal conclusion that both of the exceptions applied in Loher‘s case. Loher IV, 2011 WL 2132828, at *7-10 (quoting Loher III, 193 P.3d at 449 n. 6 (citing Kido, 76 P.3d at 619)). Specifically, it affirmed the findings that Loher had decided “to take the stand no matter what” before the trial court required him to testify immediately or not at all; that delay from a continuance would not have been “trifling“; and that defense witnesses were not present the first day of trial because Loher‘s counsel failed to confer with the prosecution about the length of its case and erred in estimating the samе. Id. at *9-10. Given these findings, the Hawaii ICA concluded that the trial court had not violated Brooks. Id. at *10.
3
A “state court‘s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court‘s decision.” Woods v. Etherton, ___ U.S. ___, 136 S.Ct. 1149, 1151, 194 L.Ed.2d 333 (2016) (per curiam) (quoting Richter, 562 U.S. at 101). Such disagreement is possible here for at least three reasons.
First, Brooks itself addressed a blanket statutory requirement that a defendant testify before his other witnesses, regardless of whether such witnesses were available. It did not address a trial court‘s extemporaneous denial of a continuance, sought in order to procure defense witnesses, where the defendant was responsible for the absence of such witnesses. Thus, the Hawaii ICA had to consider how the principles announced in Brooks applied to different facts. Extending Brooks to this new context involves interpretation and reasoning over which fairminded jurists could disagree. See Woodall, 134 S.Ct. at 1706-07.
Second, in the context of Loher‘s request for a continuance, fairminded jurists could disagree over how to balance the rights recognized in Brooks with the competing concern for a trial court‘s ability to manage trials recognized in other Supreme Court opinions. With regard to continuances in state trials, the Court has remarked:
Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same timе, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances....
Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). Similarly, when discussing federal trials, the Court has stated:
Our cases have consistently recognized the important role the trial judge plays in the federal system of criminal justice.
In Sale, the Hawaii ICA distinguished Kido and held that the trial court did not violate Brooks. Sale, 133 P.3d at 826-27.
Third, Brooks itself showed solicitude for the trial court‘s ability to manage trials. It cautioned that “nothing we say here otherwise curtails in any way the ordinary power of a trial judge to set the order of proof.” 406 U.S. at 613. A fairminded jurist could interpret Brooks narrowly and emphasize the trial court‘s discretion to set the order of proof.
Thus, a fairminded jurist could conclude that the Hawaii ICA‘s decision was correct based on: (1) the fact that Brooks addressed significantly different circumstances; (2) the Supreme Court‘s recognition elsewhere that trial courts must have broad power to manage trials and to deny continuances; and (3) the Supreme Court‘s solicitude in Brooks for the trial court‘s ability to set the order of proof.5 Specifical-
Similarly, a fairminded jurist could conclude that a trial court may require a defendant to testify, if at all, to avoid wasting two hours of trial time.7 That view is likewise not “clearly foreclose[d]” by Supreme Court precedent. Etherton, 136 S.Ct. at 1152. Brooks did not address the waste of trial time as a justification for requiring a defendant to testify first. Instead, it addressed a different justification: preventing the defendant‘s testimony from being influenced by the testimony of other defense witnesses. See Brooks, 406 U.S. at 607. Although Judge Smith‘s partial dissent argues that the justification in Brooks was “far more compelling” and that the “trade-off was grossly disproportionate,” Smith Op. at 1127, no Supreme Court holding clearly establishes such propositions. To the contrary, as discussed above, several Supreme Court opinions indicate that the trial court‘s ability to manage the trial is a compelling interest war-
In sum, extending Brooks to a trial court‘s extemporaneous ruling involves an inherent amount of extrapolation and requires balancing the rights recognized in Brooks with the competing concern for a trial court‘s ability to manage trials effectively. A fairminded jurist could readily conclude that Brooks does not require a court to waste two hours of trial time waiting for a defendant‘s other witnesses to arrive when the defendant is primarily responsible for the absence of such witnesses. Thus, the Hawaii ICA‘s conclusion that no Brooks violation occurred was not “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Etherton, 136 S.Ct. at 1151 (quoting Woodall, 134 S.Ct. at 1702).
We therefore conclude that the Hawaii ICA‘s rejection of Loher‘s Brooks claim was not objectively unreasonable.
B
Loher also argues that the creation of the post-conviction record and the Hawaii ICA‘s reliance on it in Loher IV were objectively unreasonable under both
1
The post-conviction record was created as a result of the Hawaii ICA‘s remand in Loher III. There, the court construed Loher‘s petition as raising both a Brooks claim and an IAAC claim for Shintani‘s failure to raise Brooks in Loher‘s direct appeal. Loher III, 193 P.3d at 448.
It obsеrved that, when Hawaii courts evaluate IAAC claims, “[c]ounsel‘s scope of review and knowledge of the law are assessed.” Id. at 449 (quoting State v. Briones (Briones II), 74 Haw. 442, 848 P.2d 966, 978 (1993)). In Briones II, the Hawaii Supreme Court explained that the “counsel whose performance is being evaluated is given an opportunity at the trial court level to explain his or her understanding of the issues presented for review.” Briones II, 848 P.2d at 978 n. 17 (citing
In Loher III, the Hawaii ICA remanded to develop the record on Loher‘s IAAC claims. Because “Loher‘s appellate counsel ha[d] not been given an opportunity to explain his understanding of the ‘forced testimony’ issue, and the issue ha[d] not been fully briefed and argued at a hearing on the Rule 40 Petition,” the Hawaii ICA was “unable to determine why the [Brooks] issue was not raised.” Loher III, 193 P.3d at 449. In “the absence of a sufficient record on this appeal, including an opportunity for Loher‘s former appellate counsel to be heard,” the Hawaii ICA concluded that it “must remand for the development of such a record on the issue of whether Loher had ineffective assistance of appellate counsel.” Id. at 450. The court noted that a remand would assist in determining not only why Shintani did not brief the Brooks issue but also whether a Brooks claim was “potentially meritorious.”
2
“AEDPA does not provide any specific guidance on what sort of proсedural deficiencies will render a state court‘s fact-finding unreasonable” under
Here, to assist in evaluating the IAAC claim, the Hawaii ICA remanded for the entirely reasonable purpose of providing Loher‘s appellate counsel an opportunity to explain why he did not brief the Brooks issue. Loher III, 193 P.3d at 449. While Loher argues that the remand was unnecessary because the existing trial record supported a Brooks claim, he does not explain why the state courts were required to consider the Brooks claim first without collecting further evidence on the IAAC claim. Consequently, he has failed to establish that the remand was objectively unreasonable under
Moreover, Loher cites no Supreme Court authority suggesting that an appellate court should not remand for the collection of evidence relevant to an IAAC claim.8 Thus, ordering the remand was not an objectively unreasonable application of Supreme Court precedent under
3
Loher also argues that it was objectively unreasonable “to adduce testimony from either trial counsel or the petitioner on remand in the post-conviction proceeding, when the issue to be litigated was simply whether appellate counsel had been ineffective for missing the Brooks issue.” But thе Rule 40 court did not request testimony from Loher and Kugiya. Instead, Loher‘s counsel called Loher to the stand, where he asserted that he had not intended to testify at trial and that he had ex- pressed such intent to Kugiya. This caused the State to call Kugiya to the stand to rebut Loher‘s testimony.
Loher may not complain to us that the Rule 40 court considered testimony relevant to the Brooks claim when his counsel either introduced or opened the door to such testimony. See United States v. Myers, 804 F.3d 1246, 1254 (9th Cir. 2015) (as amended) (citation omitted) (“The doctrine of invited error prevents a [party] from complaining of an error that was his own fault.“). Moreover, Loher has cited no Supreme Court authority establishing that a court must restrict its consideration of a Brooks claim to the trial record. Therefore, the Rule 40 court‘s hearing testimony from Loher and Kugiya was not objectively unreasonable under
4
Finally, Loher challenges the Hawaii ICA‘s reliance on the facts found by the Rule 40 court.
The Hawaii ICA concluded that such findings were supported by substantial evidence. Loher IV, 2011 WL 2132828, at *9. First, it reasonably upheld the finding that Loher‘s decision to testify “congealed” before the trial court‘s ruling. Id. It pointed to numerous assertions by Kugiya in the post-conviction record and the trial court‘s contemporaneous statement that Kugiya had represented to the court that Loher was going to testify. Id. To the extent that those statements conflicted with Loher‘s post-conviction testimony and Kugiya‘s
Second, the Hawaii ICA reasonably upheld the finding that Loher was responsible for the situation that required him to testify because his witnesses were not present. Id. at *9-10. On appeal, Loher did not challenge the Rule 40 court‘s “findings that (1) Kugiya made a mistake as to the timing of the State‘s case, and (2) there was no evidence that Kugiya ever consulted with the prosecutor as to the length of the State‘s case or the number of witnesses the State would actually call.” Id. at *10. With these facts uncontested, the Hawaii ICA‘s reliance on them was certainly reasonable.
Loher argues that, nevertheless, Kugiya was not responsible for the situation because the prosecution unexpectedly called only four of the fourteen witnesses on its witness list. However, Loher conceded at oral argument that “both sides typically over-designate the number of witnesses that they are going to call” and that “it is incumbent upon trial counsel to talk to one another as the trial begins” to ascertain which witnesses would realistically be called and how long such testimony would take.9 Because Kugiya was responsible for taking such steps to determine when the defense should be ready to begin its case and did not do so, thе Hawaii ICA reason- ably upheld the determination that Kugiya was responsible for the absence of other defense witnesses.
Thus, we reject Loher‘s challenges to the creation of the post-conviction record and to the Hawaii ICA‘s reliance on the facts found on remand.
IV
A
Loher persuasively argues that Hawaii has waived any challenge to the district court‘s grant of relief for ineffective assistance of appellate counsel.
“We address ‘only issues which are argued specifically and distinctly in a party‘s opening brief.‘” Chadd v. United States, 794 F.3d 1104, 1110 n. 4 (9th Cir. 2015) (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)). “We adhere to this approach for sound prudential reasons.” Ground Zero Ctr. for Non-Violent Action v. U.S. Dep‘t of Navy, 383 F.3d 1082, 1091 n. 7 (9th Cir. 2004). “The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” NASA v. Nelson, 562 U.S. 134, 148 n. 10, 131 S.Ct. 746, 178 L.Ed.2d 667 (2011) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.)); see also Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)
Here, in its opening brief, the State did not argue at all that the district court‘s grant of relief for IAAC should be reversed. After Loher argued in his response brief that Hawaii had waived this issue, the State did not even address the issue in its reply brief.
The district court granted Loher relief on three separate grounds: (1) the Brooks violation (“Ground I“); (2) IAAC for failure to raise the Brooks claim (“Ground II“); and (3) the Apprendi violation (“Ground III“). Loher VI, 23 F.Supp.3d at 1186, 1200. Because Hawaii did not object to the magistrate judge‘s recommendation that the court grant relief on Ground III, the court adopted that recommendation without analysis. The district court then analyzed Ground I and Ground II in separate sections of its opinion. See id. at 1193-1200 (Section I); id. at 1200 (Section II).11
These two grounds, although both related to the merits of the underlying Brooks claim, are independent from each other. For the Brooks claim, the question is whether Loher IV involved an unreasonable application of Brooks, and we have concluded it was not. See supra Section III.A. For the IAAC claim, the question would be whether Loher IV was contrary to, or involved an unreasonable application of, Strickland. See Hurles v. Ryan, 752 F.3d 768, 785 (9th Cir. 2014); see also Smith, 528 U.S. at 285-88 (confirming that Strickland is the proper standard for IAAC claims).
Judge Tallman‘s partial dissent suggests that our conclusion in Section III.A—that Loher IV did not involve an objectively unreasonable application of Brooks—compels the conclusion that Loher IV was neither contrary to, nor an objectively unreasonable application of, Strickland. Tallman Op. at 1125. It does not. Under Strickland, the question is whether “appellate counsel‘s representation fell below an objective standard of reasonableness” and, “but for counsel‘s errors, a reasonable probability exists that he would have prevailed on appeal.” Hurles, 752 F.3d at 785 (citation omitted). We have concluded that the Hawaii ICA‘s rejection of the Brooks claim in a post-conviction appeal, based on a post-conviction record, did not involve an objectively unreasonable application of Brooks. See Section III.A. However, such conclusion simply does not answer whether a “reasonable probability exists” that Loher would have prevailed in his direct appeal, based
Because 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.
B
Loher also persuasively argues that the State waived its challenge to Loher‘s Apprendi claim.
“As a general matter, a litigant must raise all issues and objections before the trial court. Thus, in the ordinary course, a party who does not complain of an issue in the district court forfeits his right to review of that issue on appeal.” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015) (alteration omitted) (quoting Freytag v. C.I.R., 501 U.S. 868, 879, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991)). “While ‘failure to object to a magistrate judge‘s factual findings waives the right to challenge those findings, it is well settled law in this circuit that failure to file objections ... does not automatically waive the right to appeal the district court‘s conclusions of law, but is rather ‘a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.” Id. (alterations omitted) (citing Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012)).
Here, the district court adopted the magistrate‘s recommendation to grant relief on Loher‘s Apprendi claim because Hawaii did not object to that recommendation. Loher VI, 23 F.Supp.3d at 1186. But Hawaii did more than fail to object to the magistrate‘s legal conclusion. The State affirmatively requested that the district court “adopt the Magistrate Judge‘s findings and recommendations,” without any qualification or reservation. Cf. Myers, 804 F.3d at 1254 (addressing invited error). Hawaii‘s failure to object and its affirmative request invited the district court to adopt the magistrate‘s conclusion on the Apprendi claim аnd deprived this court of the considered views of the district court on this issue. The State‘s failure to object and its affirmative invitation to adopt the magistrate‘s recommendation constitute waiver of its challenge to Loher‘s Apprendi claim.
V
Because Loher prevails on his IAAC and Apprendi claims, but not on his Brooks claim, we must remand for further proceedings. We provide the following guidance for the district court to consider in fashioning the remedy.
A
A “court has broad discretion in conditioning a judgment granting habe-
“The court‘s discretion, however, is still bound by the Constitution....” Johnson v. Uribe, 700 F.3d 413, 425 (9th Cir. 2012). In the Sixth Amendment context, the Supreme Court has instructed that “remedies should be ‘tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.‘” Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 1388-89, 182 L.Ed.2d 398 (2012) (quoting United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981)). “Thus, a remedy must ‘neutralize the taint’ of a constitutional violation, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution.” Id. (quoting Morrison, 449 U.S. at 365). “The court‘s remedy ‘should put the defendant back in the position he would have been in if the Sixth Amendment violation never occurred.‘” Johnson, 700 F.3d at 425 (quoting Chioino, 581 F.3d at 1184).13
B
Here, having granted relief on all three grounds, the district court ordered Hawaii to release or to retry Loher. Loher VI, 23 F.Supp.3d at 1200-01. Such remedy was “tailored to the injury suffered from” a Brooks violation, which results in a presumptively unfair trial. See Bell v. Cone, 535 U.S. 685, 695-96 & n. 3, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (citing United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (listing Brooks as a case in which a presumptively unfair trial resulted)). 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, 581 F.3d at 1186 (concluding that resentencing by the state trial court is the appropriate remedy for a violation of Apprendi‘s progeny, Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007)).
D
The appropriate remedy is not as clear for ineffective assistance of appellate counsel.13 The district court should consid-
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.14
VI
For the foregoing reasons, the district court‘s judgment is AFFIRMED IN PART, REVERSED IN PART, and this case is REMANDED WITH INSTRUCTIONS. Each party shall bear its own costs on appeal.
TALLMAN, Circuit Judge, concurring in part and dissenting in part:
With the utmost respect for the views of my two colleagues, I find myself at odds with portions of both opinions. I concur in all but Sections IV.A and V.D of Judge O‘Scannlain‘s opinion and would remand solely for resentencing as explained in Section VI. I respectfully dissent from that part of his opinion which declares that Hawaii has waived its challenge to the district court‘s grant of habeas relief on Loher‘s ineffective assistance of appellate counsel (IAAC) claim and suggesting that the district court order a new direct appeal to reconsider the Brooks and IAAC claims already decided against Loher by the Hawaiian appellate courts. I also disagree with Judge Smith‘s conclusion that the state court‘s construction of Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), was objectively unreasonable under
I
Judge Smith‘s opinion does not afford sufficient AEDPA deference to the factual findings of the Hawaii courts following an evidentiary hearing on state collateral review. See
In my trial experience, it is not unusual to list far more witnesses than counsel will actually need to put on during the case in chief. That avoids a ruling barring them from testifying because they were not listed in advance. It is the responsibility of counsel to confer on timing issues and to be ready to fill gaps in the trial day to avoid exactly what happened here—inexcusably running out of witnesses. The language of the Supreme Court opinions, and
II
I disagree with Section IV.A of Judge O‘Scannlain‘s opinion because I believe we should exercise our discretion to consider whether Loher is entitled to habeas relief on his IAAC claim. Hawaii‘s failure to address this issue separately and distinctly on appeal has unnecessarily complicated this case. While we ordinarily address “only issues which are argued specifically and distinctly in a party‘s opening brief,” Chadd v. United States, 794 F.3d 1104, 1109 n. 4 (9th Cir. 2015) (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)), this is not always the case. We have held that “the waiver rule is not one of jurisdiction, but discretion.” United States v. Northrop Corp., 59 F.3d 953, 957 n. 2 (9th Cir. 1995) (citing Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)).
I would exercise that discretion here, considering the “record relevant to the matter is fully developed” and the district court considered the IAAC claim below. See id. We should find that Loher is not entitled to habeas relief on his IAAC claim, which is intertwined with the merits of his invalid Brooks claim.
As Judge O‘Scannlain‘s opinion acknowledges, the inquiry as to whether Loher is entitled to habeas relief on his IAAC claim depends on whether the Hawaii state court‘s decision in Loher IV was contrary
Here, Loher cannot meet the prejudice prong—as Hawaii‘s Intermediate Court of Appeal reasonably recognized. In rejecting Loher‘s IAAC claim, the state court held:
[Appellate counsel‘s] omission of the [Brooks] issue did not result in the “withdrawal or impairment of a potentially meritorious defense.” The Circuit Court did not err in concluding that [appellate counsel‘s] omission of the “forced testimony” issue did not amount to ineffective assistance of appellate counsel.
Loher v. State, No. 29181, 2011 WL 2132828, at *10 (Haw. Ct. App. May 31, 2011) (citation omitted).
We have ruled that under AEDPA, it was not objectively unreasonable to find Loher‘s Brooks claim meritless. DFO Op. at 1113-19. How then can it be ineffective of Loher‘s appellate lawyer to have failed to raise this claim? It cannot. Accordingly, the Hawaii ICA reasonably found, in Loher IV, that Loher had not shown he was prejudiced by appellate counsel‘s omission of the Brooks claim (the second prong of the two-part Strickland test). See Loher IV, 2011 WL 2132828, at *10 (appellate counsel‘s omission of the Brooks issue “did not result in the withdrawal or impairment of a potentially meritorious defense“).
Because this finding was not contrary to, or an unreasonable application of, Strickland, Loher is not entitled to habeas relief on his IAAC claim.
III
Asking the state court to revisit an issue it already decided is senseless. Accordingly, I dissent from Section V.D of Judge O‘Scannlain‘s opinion that remands to the district court by citing to cases suggesting a new direct appeal be ordered as an additional condition required to remedy the ineffective assistance of Loher‘s appellate counsel. DFO Op. at 1122-23. Federal habeas law does not require a “do over” when we already know the result will be the same as previously pronounced by the state courts. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (federal habeas petitioners are not entitled to habeas relief unless the alleged violation had a “substantial and injurious effect or influence in determining the jury‘s verdict“).
While the district court, on remand, has discretion to consider the appropriate remedy, I strongly disagree with any suggestion that Loher might be entitled to a new direct appeal on an issue that the state courts have already decided. The Hawaii state courts have previously expended substantial judicial resources, that included an evidentiary hearing, deciding adverse to Loher the merits of the Brooks and IAAC issues. Granting Loher a new direct appeal—on an issue that lacks merit—would be a windfall.
This is not a game. Habeas corpus exists to remedy “extreme malfunctions in the state criminal justice systems.” Harrington, 562 U.S. at 102 (citation omitted). The full record in this case certainly does not present one.
In my view, the appropriate remedy is to leave the conviction intact and simply remand for re-sentencing on the Apprendi claim—which I agree has been waived for all of the reasons stated in Section IV.B of Judge O‘Scannlain‘s opinion. On remand, I would urge the district court to avoid imposing any remedy that would “squander the considerable resources the State properly invested” in determining whether the Brooks and IAAC claims were meritorious. Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 1388-89, 182 L.Ed.2d 398 (2012). Loher, a recidivist sex-offender, should not get a second-bite to challenge his conviction.
M. SMITH, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority‘s holding that the governmеnt has waived its challenges to Loher‘s ineffective assistance of counsel (IAC) and Apprendi claims, as well as in the majority‘s proposed remedy for those violations, as discussed in Section V of the opinion. I respectfully disagree, however, with the majority‘s rejection of Loher‘s claims under Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972). I would hold instead that the state court‘s denial of relief was “contrary to, or an unreasonable application” of the Supreme Court‘s holding in Brooks, within the meaning of
I. Brooks controls the outcome of Loher‘s case.
Brooks struck down a state rule that criminal defendants must testify first—before all other defense witnesses—or forfeit the right to testify at all. 406 U.S. at 605. Brooks‘s holding rested on two bases: first, that this procedural rule unlawfully curtailed a defendant‘s right to remain silent, and second, that it deprived a defendant of counsel‘s guidance in deciding “whether and when” to testify, in violation of due process. Id. at 612-13. As the Court highlighted, this Hobson‘s choice “casts a heavy burden on a defendant‘s otherwise unconditional right not to take the stand.”
Brooks set forth a robust rule of constitutional law. In reaching its conclusion, the Brooks Court considered Tennessee‘s countervailing interest in “preventing testimonial influence,” but held that this state concern did not override a defendant‘s Fifth and Fourteenth Amendment rights. Id. at 611-12. Rather, Brooks held that a criminal defendant‘s rights are violated when a trial judgе restricts “whether, and when in the course of presenting his defense, the accused should take the stand.” Id. at 613. Such was the choice that the trial judge presented to Loher‘s counsel. (“Is your client going to testify or is he going to waive his right to testify?“). These facts fall squarely within the scope of Brooks.
In support of its conclusion that Brooks does not control, the majority relies on cases where other courts have cited a trial judge‘s authority over the “order of proof” to justify occasions when a defendant was compelled to testify. 406 U.S. at 613. Indeed, the Brooks Court agreed that its holding did not “otherwise” disturb a trial judge‘s “ordinary power” over the order of proof. Id. Yet the core of the constitutional disturbance remains when, as here, a trial judge unjustifiably compels a defendant to testify first or not at all. Nothing in the reasoning of Brooks turns on whether the trial judge‘s ultimatum was “extemporaneous,” or occurred in the middle of trial. Indeed, Brooks involved far more compelling, and admittedly legitimate, state concerns in preventing testimonial influence, which failed to outweigh a defendant‘s rights under the Fifth and Fourteenth Amendments. Id. at 611-12. In contrast, the trial judge summarily concluded that an efficiency interest in the remaining two hours’ worth of time trumped Loher‘s constitutional rights. This trade-off was grossly disproportionate. To conclude otherwise would be to eviscerate one of the central concerns of Brooks—to preserve a defendant‘s “unconditional right not to take the stand.” Id. at 610.
The majority ultimately relies on whether fairminded jurists could disagree over “where to draw the line between the trial court‘s authority and the constitutional rights recognized in Brooks.” Such an approach has some appeal. Yet the fact that the Brooks Court framed its holding as a general principle of constitutional law does not indirectly weaken its force by suggesting that its application to Loher‘s particular circumstances was objectively reasonable. As the Court has clarified, “AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied.... 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, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (internal quotation marks and citation omitted). Nor does the “fairminded jurist” inquiry boil down to a matter of nose-counting the decisions of other courts in other cases. See Crace v. Herzog, 798 F.3d 840, 848 n. 3 (9th Cir. 2015).
Even so, the cases cited by the majority are materially distinguishable from Brooks and the case at hand. They illustrate only the general proposition that the outer bounds of a trial judge‘s discretion may vary from case to case—not that the line was unclear in the case before us, where the trial court abrogated Loher‘s constitutional rights to preserve a mere two hours of trial time.
For example, the majority relies on the Second Circuit‘s decision in Harris v. Barkley, 202 F.3d 169 (2d Cir. 2000), whеre the trial court compelled a criminal defendant to testify before his last witness. Unlike the facts in the case at hand, the defendant in Harris flouted the trial court‘s instructions by failing to subpoena
Menendez v. Terhune, 422 F.3d 1012, 1031 (9th Cir. 2005), is likewise inapropos because that case decided the limited issue of whether a trial court could enforce the rules of evidence by requiring a defendant to first lay the foundation for the testimony of other witnesses, when the defendant was the sole witness who could do so. In no way did the state court in Menendez mandate that the defendant testify first or forfeit the right to testify at all—it simply mandated that the defendant testify first if he desired to introduce testimony from those witnesses in order to comply with longstanding evidentiary rules. See id.
Therefore, the facts of these cases are far afield of Brooks, and of the instant case. They might permit reasonable jurists to disagree about facts that lie at the periphery of the Brooks rule. But this case lies at its core. The state court‘s reasoning was thus contrary to, or an unreasonable application of, Brooks.
II. The state court‘s analysis of the Kido exceptions to Brooks was contrary to, or an unreasonable application of, Brooks.
The state court in this case rested its analysis on certain putative exceptions to Brooks that were enunciated by the Hawaii Court of Appeals in State v. Kido, 102 Hawai‘i 369, 76 P.3d 612, 619 (Haw. Ct. App. 2003). The state court found that the Kido exceptions applied because (1) Loher‘s decision to testify “congealed” priоr to the trial court‘s actions and (2) Loher created the “exigency” that compelled him to testify first. Loher IV, 2011 WL 2132828, at *8-*9. In adopting the Kido exceptions, the state court unreasonably strayed from Brooks‘s holding.
A. Whether Loher‘s intent to testify had “congealed”
The first Kido exception involves a factual inquiry into whether a defendant‘s decision to testify had “congealed” prior to the trial court‘s action. 76 P.3d at 619. Yet Brooks emphasized that a defendant “cannot be absolutely certain that his witnesses will testify as expected or that they will be effective on the stand.” 406 U.S. at 609. Rather, a defendant is constitutionally entitled to wait “until [his testimony‘s] value can be realistically assessed.” Id. at 610. Prior to the trial court‘s ruling, Loher made no definitive statement that he would waive his right to remain silent by taking the stand and exposing himself to cross-examination. Loher v. Thomas, 23 F.Supp.3d 1182, 1198 (D. Haw. 2014).3 The district court quoted
At the outset of a 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.... 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.
Id. at 1199 (quoting United States v. Cook, 608 F.2d 1175, 1189 (9th Cir. 1979) (Kennedy, J., dissenting in part and concurring in part)). For these reasons, Brooks discouraged close probing of whether a defendant intended to testify—instead, it allowed a defendant the right to decide, or change his mind, after viewing the strength of his case. See 406 U.S. at 609-10.
Equally improper is the fact that the exception fails to consider the entirety of the Court‘s opinion in Brooks. Brooks did not limit itself to the question of whether a defendant was compelled to testify, in violation of his Fifth Amendment rights. It also rested its holding on a defendant‘s choice of when to testify, based on the Fourteenth Amendment‘s guarantee of due process. Id. at 612-13. Brooks therefore concerned two distinct constitutional rights. Yet the exception enunciated in Kido places a myopic focus on one half of the Court‘s holding by providing that whenever a defendant has already decided to testify, both his Fifth and Fourteenth Amendment rights are forfeited.
Here, Loher was harmed not only by being compelled to testify, but being compelled to do so first. See id. Brooks held that compelling a defendant to testify first interferes with his right to counsel in the planning of his defense—at a time when a defendant and his counsel are “without an opportunity to evaluate the actual worth of their evidence,” and when “as a matter of professional judgment his lawyer may want to call him later in the trial.” Id. at 612. By casting aside this part of the Court‘s constitutional holding, the exception is objectively unreasonable and, indeed, contrary to Brooks itself.
Finally, this exception sidesteps the appellate-review process set forth in casеs such as Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), for evaluating whether claims of trial error are harmful. The Hawaii courts’ post-hoc factual inquiry into when a defendant‘s decision to testify had “congealed” is independent of whether a Brooks violation existed in the first place. Rather, the exception asks whether the trial court‘s decision materially changed the outcome—that is, assuming there was constitutional error, whether such error was harmless. The Hawaii courts’ inquiry therefore places the cart before the horse by conflating harmlessness with underlying constitutional error. In effect, it assumes that when a trial error is deemed “harmless,” there can be no violation of the constitutional scheme envisioned by Brooks. Worse yet, it does so by omitting a significant threshold question: whether a harmless-error or a structural-error analysis is more appropriate.
Under structural-error analysis, legal error is per se harmful. See United States v. Sanchez-Cervantes, 282 F.3d 664, 670 (9th Cir. 2002) (citing Arizona, 499 U.S. at 309-10). As the district court concluded, a Brooks error is likely structural and not amenable to harmlessness analysis. Loher v. Thomas, 23 F.Supp.3d at 1196-97; see Bell v. Cone, 535 U.S. 685, 695-96 & n. 3, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (citing Brooks). Therefore, the choice between structural error and harmless error is a non-trivial one. By shortcircuiting the constitutional analysis under Chapman and its progency, the Hawaii court‘s exception serves to erode the standard of review in a way that materially, and invidiously, alters a reviewing court‘s conclusions.
B. Creation of the exigency
The state court also based its holding on a second Kido exception: whether a defendant is to blame for causing the “exigency” that compelled the premature testimony. Loher IV, at *7. This excеption, too, does not square with established precedent that a criminal defendant‘s waiver of fundamental constitutional rights must generally be knowing and intelligent. See Iowa v. Tovar, 541 U.S. 77, 80, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). Rather, the exception unreasonably compels a defendant to forfeit his Fifth and Fourteenth Amendment rights under Brooks, even where that situation arose as a mere mishap or “mistake,” id. at *10.
The majority relies on the assumption that Loher was “primarily responsible” for the absence of his witnesses. Even assuming the trial court was not unreasonable in imposing an affirmative duty on defense counsel in this situation, counsel‘s failure to exercise this duty, standing alone, does not compel the waiver of the defendant‘s constitutional rights under Brooks. Such a conclusion, even in pursuit of a valid interest in efficiency, would be dissonant with the very balancing conducted by the Brooks Court, where even a state‘s substantive interest in preventing testimonial gamesmanship did not outweigh a defendant‘s Fifth and Fourteenth Amendment rights. 406 U.S. at 611-12.
Moreover, the Supreme Court has long maintained that a criminal defendant waives his constitutional rights only in the case of “intentional relinquishment or abandonment.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). “Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a ‘knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances.‘” Iowa, 541 U.S. at 80 (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)); see also Zerbst, 304 U.S. at 464 (holding that courts should not “presume acquiescence in the loss of fundamental rights“). The majority cites cases from other circuits in which defendants apparently waived their rights under Brooks through affirmative misconduct or failure to fulfill a court-imposed duty—for example, to secure the presence of witnesses on a date set by the court. See, e.g., Harris, 202 F.3d at 174. Loher‘s case presents a far cry from such circumstances. Rather, the state court found that the Loher had waived the Fifth and Fourteenth Amendment rights announced in Brooks by no more than pure inadvertence.
III. Legal error under § 2254(d)(1)
The Hawaii courts, as a matter of law, misconstrued the scope of Brooks and improperly curtailed its holding through the creation of several freewheeling exceptions set forth in Kido. The Kido exceptions embody flawed constitutional standards. Most dangerously, they operate to withhold cases from Brooks scrutiny entirely once it is determined that an over-expansive exception is triggered. Because the state court applied the wrong legal standard to Loher‘s constitutional claims, AEDPA deference to its conclusions is unwarranted. See Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir. 2001); Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000). Accordingly, I would hold that the state court‘s construction of Brooks is objectively unreasonable under
I respectfully dissent.