Loher v. Thomas

Petitioner Frank O. Loher, convicted of sexual assault and given an extended-term sentence, filed a petition for habeas relief. The district court in Loher VI granted the writ on all three of Loher’s claims: (1) that the trial court violated Loher’s constitutional rights by forcing him to testify; (2) that Loher’s appellate counsel rendered ineffective assistance for failing to raise the forced testimony issue; and (3) that the enhancement of his sentence based on judge-found facts violated Apprendi v. New Jersey. The district court ordered Hawaii to release or retry Loher and then the district court stayed that order pending this appeal. The court concluded that the Hawaii ICA’s rejection of Loher’s Brooks v. Tennessee claim was not objectively unreasonable; the court rejected Loher’s challenges to the creation of the post-conviction record and to the Hawaii ICA’s reliance on the facts found on remand; because Hawaii has failed to argue this independent ineffective-assistance-of-appellate-counsel (IAAC) issue specifically and distinctly, it has waived its challenge to the district court’s grant of relief; and 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. Accordingly, the court affirmed in part, reversed in part, and remanded with instructions. View "Loher v. Thomas" on Justia Law