Rainwater Law Group

Effective Criminal Defense

Loher v. Thomas, No. 14-16147 [June 17, 2016]

Loher v. Thomas

Loher raised a claim that he was forced to testify in violation of his rights to remain silent and to due process (the forced testimony was alleged when the court refused a request to continue the trial because his witnesses were not present and ordered the defense to proceed with Loher’s testimony). Loher argued that the rejection of his “forced testimony” claim involved an unreasonable application of Brooks v. Tennessee, 406 U.S. 605 (1972). (Finding a violation where a defendant was required to testify before his witnesses.) The court found that it was an unreasonable application of Brooks because 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.” The court then held that the State had “waived any challenge to the district court’s grant of relief for ineffective assistance of appellate counsel.” Here, the State did not argue that the district court grant of relief on IAAC should be reversed, Loher argued in his brief that the issue was, therefore, waived, and the State did not address the issue in its reply brief. The Court further found that the State also waived Loher’s Apprendi claim to his enhanced sentence. Remanded to the district court for a decision on the appropriate remedy, as a retrial or dismiss, would not address the claims that were granted. The Court suggested a resentencing on the Apprendi claim and that an appropriate remedy for the IAAC claim would be a new appeal.

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