                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


FRANK O. LOHER,                       No. 14-16147
      Petitioner-Appellee,
                                        D.C. No.
             v.                 1:11-cv-00731-LEK-KSC

TODD THOMAS,
    Respondent-Appellant.                OPINION


      Appeal from the United States District Court
                for the District of Hawaii
      Leslie E. Kobayashi, District Judge, Presiding

        Argued and Submitted October 13, 2015
                  Honolulu, Hawaii

                   Filed June 17, 2016

 Before: Diarmuid F. O’Scannlain, Richard C. Tallman,
        and Milan D. Smith, Jr., Circuit Judges.

              Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by Judge Tallman;
     Partial Concurrence and Partial Dissent by Judge
                   Milan D. Smith, Jr.
2                       LOHER V. THOMAS

                           SUMMARY*


                          Habeas Corpus

    The panel affirmed in part and reversed in part the district
court’s judgment granting Frank Loher’s habeas corpus
petition challenging his Hawaii state conviction and sentence
for attempted sexual assault, and remanded with instructions.

    The district court 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, 530 U.S. 466 (2000).

    The panel held that the Hawaii Intermediate Court of
Appeals’ (Hawaii ICA’s) rejection of Loher’s claim under
Brooks v. Tennessee, 406 U.S. 605 (1972), that he was forced
to testify in violation of his rights to remain silent and to due
process, was not objectively unreasonable.

    The panel held that the trial court’s creation, on remand
from the Hawaii ICA, of a post-conviction record on Loher’s
ineffective-assistance-of-appellate-counsel (IAAC) claims,
and the Hawaii ICA’s reliance on the post-conviction record,
were not objectively unreasonable under 28 U.S.C.
§ 2254(d)(1) and 2254(d)(2).


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     LOHER V. THOMAS                         3

    The panel held that Hawaii waived its challenge to the
district court’s grant of relief for ineffective assistance of
appellate counsel, and waived its challenge to Loher’s
Apprendi claim.

    The panel remanded 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. The panel wrote that the district
court should consider what additional condition is required to
remedy the ineffective assistance of Loher’s appellate
counsel.

    Judge Tallman concurred in part and dissented in part.
He dissented from the part of Judge O’Scannlain’s opinion
which declares that Hawaii has waived its challenge to the
grant of habeas relief on Loher’s 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. He disagreed with Judge
M. Smith’s conclusion that the state court’s construction of
Brooks was objectively unreasonable under § 2254(d).

    Judge M. Smith concurred in part and dissented in part.
He concurred in the majority’s holding that the government
has waived its challenges to Loher’s IAAC and Apprendi
claims, as well as in the majority’s proposed remedy for those
violations. He disagreed with the majority’s rejection of
Loher’s Brooks claims, and 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.
4                       LOHER V. THOMAS

                            COUNSEL

Brian R. Vincent, Deputy Prosecuting Attorney, Honolulu,
Hawaii, for Respondent-Appellant.

Peter C. Wolff, Jr., Federal Public Defender, Honolulu,
Hawaii, Petitioner-Appellee.


                             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

    1
    The facts are from the record and various court opinions, including:
State v. Loher, No. 24489, 2003 WL 1950475 (Haw. Ct. App. Apr. 21,
2003) (Loher I); State v. Loher, No. 26000, 2005 WL 335234, at *3 (Haw.
Ct. App. Feb. 11, 2005) (Loher II); Loher v. State, 193 P.3d 438, 455
(Haw. Ct. App. 2008) (Loher III); Loher v. State, No. 29818, 2011 WL
2132828 (Haw. Ct. App. May 31, 2011) (Loher IV); Loher v. Thomas,
Civ. No. 11-00731, 2013 WL 8561780 (D. Haw. Oct. 2, 2013) (Loher V);
Loher v. Thomas, 23 F. Supp. 3d 1182 (D. Haw. 2014) (Loher VI).
                           LOHER V. THOMAS                    5

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


 2
     Trial days appear to last until 4:30 p.m.
6                 LOHER V. THOMAS

    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
    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
    [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.
             LOHER V. THOMAS                      7

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 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
8                        LOHER V. THOMAS

         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 Tachibana[3] 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. It’s
         just that it was my understanding from


    3
    In Tachibana v. State, the Hawaii Supreme Court held 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. See
900 P.2d 1293, 1303 (Haw. 1995).
                    LOHER V. THOMAS                        9

       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. . . .

       THE COURT: Court will stand in recess.

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 because 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 Hawaii Revised Statutes § 706–662(1).
10                    LOHER V. THOMAS

                               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 Hawaii Rule of Penal
Procedure 35 (2002) (“Rule 35 Motion”), arguing in part that
Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny
required that a jury—rather than the court—find the facts
necessary to impose his extended sentence. After the circuit
court denied the motion, Loher appealed, and the Hawaii ICA
affirmed in Loher II.

                               D

     Next, Loher filed a pro se post-conviction petition, also in
Hawaii circuit court, under Hawaii Rule of Penal Procedure
40 (“Rule 40 Petition”) in which he raised dozens of claims.
After the trial judge rejected Loher’s claims without a
hearing, Loher appealed, again pro se. Although Loher’s
briefing did not clearly set forth his claims, the Hawaii ICA
addressed his arguments to the extent it understood them. In
Loher III, it construed Loher’s petition as claiming that the
trial court violated his constitutional rights by forcing him to
testify and that Loher’s appellate counsel rendered ineffective
assistance by failing to raise the “forced testimony” issue in
Loher’s direct appeal. The court remanded for a hearing on
                      LOHER V. THOMAS                         11

Loher’s ineffective assistance of appellate counsel (“IAAC”)
claim.

    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 Loher V,
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. Loher VI, 23 F. Supp. 3d at 1186, 1200.
Having granted relief on all three grounds, the district court
ordered Hawaii to release or to retry Loher. Id. at 1200–01.
It then stayed that order pending this appeal, which was
timely filed.
12                   LOHER V. THOMAS

                              II

                              A

    We have jurisdiction under 28 U.S.C. §§ 1291 and
2253(a) and “review de novo the district court’s grant of a
§ 2254 habeas petition.” Wilkinson v. Gingrich, 806 F.3d
511, 515–16 (9th Cir. 2015) (as amended) (citing Doody v.
Ryan, 649 F.3d 986, 1001 (9th Cir. 2011) (en banc)). We
review the district court’s determination of the appropriate
remedy for a constitutional violation on a habeas petition for
abuse of discretion. Chioino v. Kernan, 581 F.3d 1182, 1184
(9th Cir. 2009).

                              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.”

28 U.S.C. § 2254(d). “This is a ‘difficult to meet’ and ‘highly
deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the
                     LOHER V. THOMAS                         13

doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(quoting Harrington v. Richter, 562 U.S. 86, 102 (2011);
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

                               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
(2003)). Under the “contrary to” clause of § 2254(d)(1), a
federal court may grant relief only when “the state court
arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court
decides a case differently than [the Supreme Court] has on a
set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 413 (2000).

    Under the “unreasonable application” clause of
§ 2254(d)(1), “a state-court decision involves an unreasonable
application of [the Supreme Court’s] precedent if the state
court identifies the correct governing legal rule . . . but
unreasonably applies it to the facts of the particular state
prisoner’s case.” White v. Woodall, 134 S. Ct. 1697, 1705
(2014) (quoting Williams, 529 U.S. at 407–08). “And an
‘unreasonable application of’ [the Supreme Court’s] holdings
must be objectively unreasonable, not merely wrong; even
clear error will not suffice.” Woods v. Donald, 135 S. Ct.
1372, 1376 (2015) (per curiam) (quoting Woodall, 134 S. Ct.
at 1702). “To satisfy this high bar, a habeas petitioner is
required to ‘show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
14                     LOHER V. THOMAS

existing law beyond any possibility for fairminded
disagreement.’” Id. (quoting Richter, 562 U.S. at 103).

     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 § 2254(d)(2), fact-based challenges “fall into two
main categories.” Hibbler v. Benedetti, 693 F.3d 1140, 1146
(9th Cir. 2012). “First, a petitioner may challenge the
substance of the state court’s findings and attempt to show
that those findings were not supported by substantial evidence
in the state court record.” Id. (citing Taylor v. Maddox,
366 F.3d 992, 999–1000 (9th Cir. 2004)). “Second, a
petitioner may challenge the fact-finding process itself on the
ground that it was deficient in some material way.” Id.
(citing Taylor, 366 F.3d at 999, 1001).

    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 (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
                     LOHER V. THOMAS                        15

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 (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 panel, 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
16                   LOHER V. THOMAS

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 (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 (1971)). Since a
defendant cannot be certain of what his witnesses will say, he
“may not know at the close of the State’s case 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
                     LOHER V. THOMAS                       17

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.

Id. at 612–13.

                              2

   In Loher IV, the Hawaii ICA reviewed two of its prior
decisions applying Brooks to a trial court’s ruling that a
18                      LOHER V. THOMAS

defendant testify first or not at all: State v. Kido, 76 P.3d 612
(Haw. Ct. App. 2003), and State v. Sale, 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 court required the defense to
call the only witness present, the defendant. Id. at 615. On
appeal, the Hawaii ICA identified several situations in which
courts had held that no Brooks violation occurred, including
“where the defendant’s decision whether to testify congealed
before the trial court’s action[] and/or . . . where the
defendant himself created the exigency for taking his
testimony first.” Id. at 619 (citations omitted).4

     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


 4
   However, the Hawaii ICA concluded that those “exceptions” to Brooks
did not apply in Kido’s case. Id. at 619–20. The court reversed and
remanded for a new trial. Id. at 622–23. In Sale, the Hawaii ICA
distinguished Kido and held that the trial court did not violate Brooks.
Sale, 133 P.3d at 826–27.
                     LOHER V. THOMAS                        19

case and erred in estimating the same. 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, 136 S. Ct. 1149, 1151 (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
20                    LOHER V. THOMAS

        their problems is that of assembling the
        witnesses, lawyers, and jurors at the same
        place at the same time, 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 (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. The judge
        is not a mere moderator, but is the governor of
        the trial for the purpose of assuring its proper
        conduct and of determining questions of law.
        A criminal trial does not unfold like a play
        with actors following a script; there is no
        scenario and can be none. The trial judge
        must meet situations as they arise and to do
        this must have broad power to cope with the
        complexities and contingencies inherent in the
        adversary process. To this end, he may
        determine generally the order in which parties
        will adduce proof; his determination will be
        reviewed only for abuse of discretion.

Geders v. United States, 425 U.S. 80, 86 (1976) (alterations
and internal quotation marks omitted). Thus, at a certain
point, the trial court must have discretion to manage the trial.
Fairminded jurists could disagree over where to draw the line
between the trial court’s authority and the constitutional
rights recognized in Brooks.
                         LOHER V. THOMAS                               21

     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 Specifically, such


 5
   While our focus above is properly on “whether the applicable Supreme
Court law leaves the issue raised by the petitioner open or resolves it,”
Crace v. Herzog, 798 F.3d 840, 848 n.3 (9th Cir. 2015), we note that
many state and federal courts have reached conclusions that support the
Hawaii ICA’s decision. As the Hawaii ICA recognized, numerous courts,
including our own, “have adopted a narrow interpretation of Brooks and
a corresponding emphasis on the discretion of trial courts to set the order
of proof.” Loher IV, 2011 WL 2132828, at *7 n.5 (citing Menendez v.
Terhune, 422 F.3d 1012, 1031 (9th Cir. 2005) (“Apart from its limited
holding, Brooks did not ‘curtail in any way the ordinary power of a trial
judge to set the order of proof.’” (quoting Brooks, 406 U.S. at 613)
(alteration omitted)); United States v. Singh, 811 F.2d 758, 762–63 (2d
Cir. 1987); Harris v. Barkley, 202 F.3d 169, 173–74 (2d Cir. 2000) (per
curiam); Juniel v. Felkner, No. C 07-4542 RMW (PR), 2010 WL
1912031, at *7 (N.D. Cal. May 11, 2010); People v. Lancaster, 158 P.3d
157, 194 (Cal. 2007); People v. Walden, 224 P.3d 369, 376 (Colo. Ct.
App. 2009); Book v. State, 880 N.E.2d 1240, 1248–50 (Ind. Ct. App.
2008); People v. Smith, 690 N.Y.S.2d 6, 7 (App. Div. 1999); see also
Loher IV, 2011 WL 2132828, at *8 n.6 (citing, among others, United
States v. Leon, 679 F.2d 534, 538 (5th Cir. 1982); Johnson v. Evans, No.
CIV S-05-1223, 2009 WL 5030661, at *14–15 (E.D. Cal. Dec. 16, 2009);
State v. Turner, 751 A.2d 372, 384 (Conn. 2000)).
22                        LOHER V. THOMAS

a jurist could readily conclude that a trial court may require
a defendant to testify, if at all, while awaiting the arrival of
other defense witnesses where the defendant is responsible
for the absence of such witnesses.6 “No precedent of [the



     In Harris, a federal habeas case, the Second Circuit concluded that,
“[n]otwithstanding . . . some of the broad language the Court employed in
Brooks, . . . Brooks does not constitute a general prohibition against a trial
judge’s regulation of the order of trial in a way that may affect the timing
of a defendant’s testimony.” Harris, 202 F.3d at 173. The Second Circuit
thus expressly rejected the contention in Judge Smith’s partial dissent that
Brooks announced a “general principle of constitutional law” “that a
criminal defendant’s rights are violated when a trial judge restricts
‘whether, and when in the course of presenting his defense, the accused
should take the stand.’” Smith Op. at 45–46 (quoting Brooks, 406 U.S. at
613). Next, the Second Circuit distinguished the categorical, statutory rule
in Brooks from an exercise of the “trial court’s ‘broad power to cope with
the complexities and contingencies’ of trial.” Id. at 174 (quoting Singh,
811 F.2d at 762–63).
 6
   As the Hawaii ICA observed, many courts have “held that a trial court
may require the defendant to testify, if at all, while awaiting the arrival of
other defense witnesses.” See Loher IV, 2011 WL 2132828, at *7 n.5
(citing Walden, 224 P.3d at 375–76 (recognizing this as a separate
category of cases finding no Brooks violation and citing three such state-
court decisions); Juniel, 2010 WL 1912031, at *5–7; Lancaster, 158 P.3d
at 194; Soto v. State, 751 So.2d 633, 639 (Fla. Ct. App. 1999); Book,
88 N.E.2d at 1243–50; State v. Amos, 262 N.W.2d 435, 437 (Minn. 1978);
Smith, 690 N.Y.S.2d at 7).

     In Harris, defense counsel could not procure the presence of a police
officer until the following day, and the trial court ordered the defendant to
take the stand immediately. See 202 F.3d at 171–72. The Second Circuit
recognized that a defendant’s responsibility for the lack of other defense
witnesses distinguished his circumstances from those in Brooks: “Harris,
unlike Brooks, bears primary responsibility for the situation that
engendered the ruling of which he now complains.” Id. at 174; see also
Turner, 751 A.3d at 382–84 (“Brooks does not apply here because the
                          LOHER V. THOMAS                               23

Supreme Court] clearly forecloses that view.” Etherton,
136 S. Ct. at 1152. Brooks simply did not address such a
situation. Moreover, it is not “so obvious” that the rules set
forth in Brooks apply here “that there could be no ‘fairminded
disagreement’ on the question.” See Woodall, 134 S. Ct. at
1706–07.

    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


order of witnesses resulted solely from Corey Turner’s late disclosure of
his alibi and his own statements to the court.”).
  7
    Again, several courts have reached such a conclusion. For example,
in Walden, the “prosecution completed its case at about 4 p.m. on the first
day of trial.” 224 P.3d at 372. The Colorado Court of Appeals concluded
that the trial court had not violated Brooks when it ordered Walden to
testify that afternoon because his expert was not available. See id. at
377–78. It noted that the trial “court’s decision was influenced by its
concern that the jury’s time not be wasted. This was a legitimate reason
supporting the court’s exercise of discretion over the order of witnesses
because the court would have been required to adjourn for the day if
defendant were to testify after his expert.” Id. at 377. Whatever portion
of Walden’s trial day remained after 4 p.m., it was likely less than the two
hours left in Loher’s first trial day. See also Leon, 679 F.2d at 538
(“Brooks does not control here. The judge was merely trying to keep the
trial from stalling in mid-afternoon.”); Smith, 690 N.Y.S.2d at 7 (“The
court exercised its power to control the flow of the proceedings in the
interest of preventing the morning session of the trial from being wasted,
and defendant’s decision to testify was made with the assistance of
counsel.”); Soto, 751 So.2d at 638–39 (Brooks was “inapplicable” where,
having granted a 30-minute continuance, the trial judge “simply told the
defense, when it could produce no other witnesses, that if the defendant
was going to testify, he would have to take the stand. Otherwise, there
were no other witnesses available.”).
24                    LOHER V. THOMAS

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 45–46, 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 warranting the trial court’s broad
discretion to deny continuances and to set the order of proof.
See Morris, 461 U.S. at 11; Geders, 425 U.S. at 86.

    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.
                     LOHER V. THOMAS                       25

                              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 § 2254(d)(1) and
§ 2254(d)(2).

                              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 observed that, when Hawaii courts evaluate IAAC
claims, “[c]ounsel’s scope of review and knowledge of the
law are assessed.” Id. at 449 (quoting Briones v. State
(Briones II), 848 P.2d 966, 978 (Haw. 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 Haw. R. Penal P. 40(f)). It further instructed that,
“[i]n the absence of sufficient evidence in the record on
appeal, an appellate court should remand for the development
of such a record.” Id.

    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
26                    LOHER V. THOMAS

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.” Id. at 449.

                               2

    “AEDPA does not provide any specific guidance on what
sort of procedural deficiencies will render a state court’s fact-
finding unreasonable” under § 2254(d)(2). Hibbler, 693 F.3d
at 1147. When determining whether a state’s fact-finding
procedures were reasonable, we must engage in a “fact-bound
and case-specific inquiry.” Id.

    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
§ 2254(d)(2).

   Moreover, Loher cites no Supreme Court authority
suggesting that an appellate court should not remand for the
                         LOHER V. THOMAS                              27

collection of evidence relevant to an IAAC claim.8 Thus,
ordering the remand was not an objectively unreasonable
application of Supreme Court precedent under § 2254(d)(1).

                                    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 the 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 expressed 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


  8
    Indeed, remanding for counsel to explain his conduct comports with
the federal test for ineffective assistance of counsel claims set forth in
Strickland v. Washington, 466 U.S. 668, 687–95 (1984); see also Smith v.
Robbins, 528 U.S. 259, 285–88 (2000) (confirming that Strickland is the
proper standard for IAAC claims). There, the Court explained that “every
effort [must] be made . . . to reconstruct the circumstances of counsel’s
challenged conduct[] and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. Obtaining counsel’s
explanation of his own conduct and perspective is certainly a reasonable
part of such an evaluation.
28                   LOHER V. THOMAS

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 § 2254(d)(1) or § 2254(d)(2).

                               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 contemporaneous statements, the
appellate court reasonably deferred to the Rule 40 court,
which was in the best position to judge the credibility of the
witnesses. Id.

    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
                          LOHER V. THOMAS                                 29

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, the Hawaii ICA
reasonably 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.


 9
    The trial court made the latter point when ruling: “The Court believes
that it was 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.” See
also Tallman Op. at 39–40; see generally 2 John Toothman & Douglas
Danner, Trial Practice Checklists § 9:51, ¶ 6, Westlaw (database updated
March 2016) (“Another complication in defendant’s case is that counsel
generally does not know when plaintiff will rest and defendant’s case will
begin: a. plaintiff may make an estimate of when its case will be
completed, but these estimates may not be accurate, b. different judges
also have different habits regarding the length of a trial day, c. some
judges will be lenient in postponing the beginning of defendant’s case if
plaintiff finishes early, but others will not, d. defense counsel should have
witnesses available at the earliest possible time the plaintiff may rest, even
if this means that the witnesses may be waiting for some time . . . .”).
30                       LOHER V. THOMAS

                                   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 (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)
(“Our adversarial system relies on the advocates to inform the
discussion and raise the issues to the court.”); Abovian v. INS,
219 F.3d 972, 981 (9th Cir. 2000) (Wallace, J., dissenting)
(“There is a risk that the court, lacking the analysis ordinarily
provided by adversarial parties, will reach the wrong
conclusion on the merits and create poor precedent . . . .”).10


  10
     Judge Tallman’s partial dissent argues that we have discretion to
consider issues not argued specifically and distinctly in an opening brief.
Tallman Op. at 40. But such discretion relates to a different type of
waiver—our “‘general rule’ against entertaining arguments on appeal that
were not presented or developed before the district court.” In re Mercury
                         LOHER V. THOMAS                               31

    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


Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (citation
omitted); see United States v. Northrop Corp., 59 F.3d 953, 957 n.2 (9th
Cir. 1995) (addressing waiver of issue “raised for the first time on
appeal”).
 11
    Because the district court granted relief on Ground II, Judge Tallman’s
partial dissent errs when it suggests that Loher’s entitlement to habeas
relief on his IAAC claim depends on whether the Hawaii ICA’s decision
in Loher IV was “contrary to, or an unreasonable application of,
Strickland.” Tallman Op. at 40. At this stage, Loher is entitled to relief
on his IAAC claim unless Hawaii argues successfully that the district
court erred in granting such relief. Hawaii has not raised any argument on
this issue.
32                        LOHER V. THOMAS

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 41–42. 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 on the trial record, if his
counsel had raised a Brooks claim.12


     12
       The approach suggested in Judge Tallman’s partial dissent,
considering the merits of the IAAC claim, raises numerous questions for
which the State has supplied no arguments. For example, did the Hawaii
ICA even determine whether a reasonable probability exists that Loher
would have prevailed in his direct appeal? One could argue that Loher IV
applied a more burdensome standard by rejecting the IAAC claim on the
ground that the Brooks claim was not actually meritorious in the post-
conviction appeal on the basis of evidence that was not in the trial record.
Loher IV, 2011 WL 2132828, at *10. If the Hawaii ICA applied the
wrong standard, what would we conclude on de novo review? Did
                         LOHER V. THOMAS                               33

   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 (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)).




counsel’s performance fall below an objective standard of reasonableness?
If the Hawaii ICA had considered solely the trial record, is there a
reasonable probability that it would have ruled in favor of Loher on his
direct appeal, as it did for Kido? With respect to these questions, Loher
raises non-trivial arguments, which the State makes no attempt to rebut.
Ultimately, we need not consider such contentions or answer any of these
questions because the State has waived the issue by failing to raise it its
opening brief.
34                   LOHER V. THOMAS

     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 and 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 habeas relief. Federal courts are authorized, under
28 U.S.C. § 2243, to dispose of habeas corpus matters ‘as law
and justice require.’” Hilton v. Braunskill, 481 U.S. 770, 775
(1987). “More specifically, a court may issue a conditional
writ that requires the state to release a petitioner unless it
takes some other remedial action, such as retrial of the
petitioner.” Lujan v. Garcia, 734 F.3d 917, 933 (9th Cir.
2013).
                     LOHER V. THOMAS                       35

    “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, 132 S. Ct. 1376, 1388–89 (2012) (quoting United
States v. Morrison, 449 U.S. 361, 364 (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).

                              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 (2002) (citing United
States v. Cronic, 466 U.S. 648, 659 n.25 (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.
36                       LOHER V. THOMAS

                                   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 (2007)).

                                   D

    The appropriate remedy is not as clear for ineffective
assistance of appellate counsel.13 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 (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.




  13
     We leave it to the district court to decide whether the principles
delineated in the Sixth Amendment cases in Section V.A should apply to
the remedy for ineffective assistance of appellate counsel, which
constitutes a violation of the Due Process Clause of the Fourteenth
Amendment. See Tamalini v. Stewart, 249 F.3d 895, 902 (9th Cir. 2001)
(discussing Martinez v. Ct. App. of Cal., 528 U.S. 152, 161 (2000) (“[T]he
Sixth Amendment does not apply to appellate proceedings . . . .”));
Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010). We note that
we have previously determined that it is “sensible” to apply such
principles to the remedy for a violation of the Fifth Amendment. See
Lujan, 734 F.3d at 934–36.
                          LOHER V. THOMAS                                 37

    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.




 14
    Contrary to the suggestion in Judge Tallman’s partial dissent, Tallman
Op. at 42–43, the Hawaii ICA has not considered, and Loher has not yet
litigated, whether Loher’s trial record makes out a meritorious Brooks
claim. 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
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 lie squarely with the State for failing to argue
for reversal of the district court’s grant of the writ with respect to Loher’s
IAAC claim.
38                    LOHER V. THOMAS

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 (1972), was objectively
unreasonable under 28 U.S.C. § 2254(d).

                               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 28 U.S.C. § 2254(d). Those courts expressly found that
Loher’s trial counsel created the mid-trial hiatus by failing to
confer with opposing counsel as to how many witnesses the
State intended to actually call. That factual finding is entitled
to a presumption of correctness, which Loher has not rebutted
by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
The findings included that when the State rested early on the
first day, the defense was unprepared to call any of its
witnesses except for the defendant, who had intended to
testify all along. Simply because Judge Smith would have
                         LOHER V. THOMAS                              39

found otherwise is not good enough. See Wood v. Allen,
558 U.S. 290, 301 (2010) (“[A] state-court factual
determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the
first instance.”); Schriro v. Landrigan, 550 U.S. 465, 473
(2007) (“The question under AEDPA is not whether a federal
court believes the state court’s determination was incorrect
but whether that determination was unreasonable—a
substantially higher threshold.”).

    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 Federal Rule of
Evidence 611,1 recognize the key role and responsibility of
the trial judge to keep the trial moving. See Morris v. Slappy,
461 U.S. 1, 11 (1983) (“Trial judges necessarily require a
great deal of latitude in scheduling trials.”); Geders v. United
States, 425 U.S. 80, 86 (1976) (“The judge is not a mere
moderator, but is the governor of the trial for the purpose of
assuring its proper conduct and of determining questions of
law.”) (citations omitted). This is especially important in
congested urban trial courts, like those in Honolulu, that must

 1
   Federal Rule of Evidence 611 instructs courts to: “exercise reasonable
control over the mode and order of examining witnesses and presenting
evidence” in order to “avoid wasting time.” The trial judge cited to the
Hawaiian equivalent of the federal rule in refusing to adjourn two hours
early. Jurors do not like to come in for half a day and then be told to go
home. It is inconsiderate of their valuable time and a waste of precious
courtroom space and limited judicial officer time as well.
40                   LOHER V. THOMAS

daily address heavy trial caseloads so that all defendants can
be heard. On this record, the Hawaiian courts were not
objectively unreasonable in ruling that there was no Brooks
error.

                              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 (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 to, or involved an
unreasonable application of, Strickland v. Washington,
466 U.S. 668 (1984). DFO Op. at 31–33; see Smith v.
                     LOHER V. THOMAS                        41

Robbins, 528 U.S. 259, 285 (2000). Under Strickland’s two-
part test, Loher had to show both that his appellate counsel’s
representation fell below an objective standard of
reasonableness for failing to raise the Brooks issue and that
there is “a reasonable probability that, but for his counsel’s
unreasonable failure to file a merits brief, he would have
prevailed on his appeal.” Smith, 528 U.S. at 285 (citing
Strickland, 466 U.S. at 694). “The likelihood of a different
result must be substantial, not just conceivable.” Harrington
v. Richter, 562 U.S. 86, 112 (2011). We may consider either
Strickland prong, and need not address both if Loher fails
one. Strickland, 466 U.S. at 697.

    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 16–29. How then can it be ineffective of Loher’s
appellate lawyer to have failed to raise this claim? It cannot.
42                    LOHER V. THOMAS

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 36–37.
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 (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,
                    LOHER V. THOMAS                       43

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.

    A new direct appeal under Judge O’Scannlain’s view
would also apparently require the Hawaii state courts to
disregard all of the important evidence that was adduced in
the state evidentiary hearing on the Brooks issue. See DFO
Op. at 37 n.14. We should not, under the guise of doing what
is “equitable,” turn back the hands of time and deprive the
state court of important evidence obtained from the
evidentiary hearing that was conducted for the exact purpose
of determining whether the Brooks claim was “potentially
meritorious.” See Strickland, 466 U.S. at 689 (every effort
must be made to “reconstruct the circumstances of counsel’s
challenged conduct”). That hearing conclusively showed it
was not.

    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, 132 S. Ct. 1376, 1388–89 (2012). Loher, a recidivist
sex-offender, should not get a second-bite to challenge his
conviction.
44                       LOHER V. THOMAS

M. SMITH, Circuit Judge, concurring in part and dissenting
in part:

    I concur in the majority’s holding that the government 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 (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 28 U.S.C. § 2254(d)(1).1

         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.” Id. at

     1
      Despite some difficulty accepting the bona fides of factfinding
conducted a decade after the relevant events, I will assume that the facts
found by the state court are true. Therefore, my view does not rely on a
conclusion that its assessment of the evidence was “unreasonable” under
28 U.S.C. § 2254(d)(2). Rather, I find legal error in the manner in which
the state court construed the holding of Brooks, such that its construction
was contrary to, or an objectively unreasonable application of, established
law.
                      LOHER V. THOMAS                         45

610–11 (emphasis added). The Court further explained that
this rule unlawfully deprived the defendant of the strategic
hand of counsel in the timing of his testimony, a “critical
element of his defense.” Id. at 612–13.

    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 judge 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
46                   LOHER V. THOMAS

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 (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.
                          LOHER V. THOMAS                                 47

    For example, the majority relies on the Second Circuit’s
decision in Harris v. Barkley, 202 F.3d 169 (2d Cir. 2000),
where 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 a witness to appear on the specific date
that the trial court had pre-determined. Id. at 174.2

    Menendez v. Terhune, 422 F.3d 1012, 1031 (9th Cir.
2005), is likewise inappropos 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


 2
   Similarly, in United States v. Leon, 679 F.2d 534, 538 (5th Cir. 1982),
the Fifth Circuit addressed a situation where defense counsel was unable
to secure the appearance at trial of a voluntary witness. Leon’s analysis of
this issue is scant, but it appears to rest its holding on the assumption that
the defendant had already decided to testify and that the witness was
merely a voluntary one. In addition, Leon’s reasoning commits the same
legal error discussed below, infra Section II.A. That is, a determination
that the trial court’s ruling is harmless cannot factor into whether the
ruling itself violated Brooks. In parsing claims of trial error, we look to
whether an error of constitutional magnitude occurred. Then, we examine
whether such error is susceptible to harmless-error analysis. See Arizona
v. Fulminante, 499 U.S. 279, 308 (1991).
48                    LOHER V. THOMAS

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, 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” prior to the trial court’s actions and (2) Loher
created the “exigency” that compelled him to testify first.
Loher v. Hawaii, No. 29-818, 2011 WL 2132828 (Haw. Ct.
App. 2011) (“Loher IV”), *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,
                          LOHER V. THOMAS                               49

23 F. Supp. 3d 1182, 1198 (D. Haw. 2014).3 The district court
quoted then-Circuit Judge Anthony Kennedy as follows:

         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


  3
     Even if the state court’s post-hoc inquiry into whether Loher had
intended to testify all along was in accordance with Brooks, Loher was not
required to take the stand to establish an alibi defense under Hawaiian law.
See Loher, 23 F.Supp.3d at 1198 (citing State v. Cordeira, 707 P.2d 373,
376 (1985)).
50                    LOHER V. THOMAS

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 cases such as Chapman v. California,
386 U.S. 18 (1967), and Arizona v. Fulminante, 499 U.S. 279
(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
                      LOHER V. THOMAS                         51

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 (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 exception, 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 (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.
52                   LOHER V. THOMAS

    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 (1993) (quoting Johnson
v. Zerbst, 304 U.S. 458 (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 (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.
                     LOHER V. THOMAS                       53

   III.    Legal error under § 2554(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, 1095 (9th Cir.
2000). Accordingly, I would hold that the state court’s
construction of Brooks is objectively unreasonable under
28 U.S.C. § 2554(d)(1), and must be reversed.

   I respectfully dissent.
