Kaua v. Frank

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WAYMAN KAUA, 
Petitioner-Appellee, No. 05-15059
v. D.C. No.
CLAYTON FRANK, Warden, Halawa  CV-03-00432-SOM/
Correctional Facility; STATE OF BMK
HAWAII, OPINION
Respondents-Appellants.

Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, District Judge, Presiding

Argued and Submitted
December 5, 2005—San Francisco, California

Filed January 11, 2006

Before: Stephen S. Trott, Thomas G. Nelson, and
Richard A. Paez, Circuit Judges.

Opinion by Judge Thomas G. Nelson

331
 KAUA v. FRANK 333

COUNSEL

Peter B. Carlisle, Prosecuting Attorney, and Loren J. Thomas,
Deputy Prosecuting Attorney, Honolulu, Hawaii, for the
respondents-appellants.
334 KAUA v. FRANK
Peter C. Wolff, Jr., Federal Public Defender, Honolulu,
Hawaii, for the petitioner-appellee.

OPINION

T.G. NELSON, Circuit Judge:

Appellants, the State of Hawaii and Clayton Frank,1 appeal
the Hawaii district court’s grant of Wayman Kaua’s petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We
have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and
we affirm. The Hawaii sentencing court found that an
extended sentence was necessary to protect the public in
Kaua’s case. Because the effect of this finding was to increase
Kaua’s sentence above that authorized by the jury’s guilty
verdict, we hold that Apprendi v. New Jersey2 required a jury
to make the finding. In reaching the opposite conclusion, the
Hawaii Supreme Court applied a rule — the “intrinsic-
extrinsic” analysis — contrary to the rule that Apprendi
announced. The district court properly granted the writ.

BACKGROUND

In 1999, Kaua was indicted in state court in connection
with a hostage standoff.3 A jury acquitted Kaua of attempted
murder in the first degree, but convicted him of several other
offenses. These offenses included class-A felonies carrying
twenty-year maximum sentences, class-B felonies carrying
ten-year maximum sentences, and class-C felonies carrying
five-year maximum sentences.
1
Henceforth, we refer to the appellants collectively as “the State.”
2
530 U.S. 466 (2000).
3
A full description of the crimes of which Kaua was convicted may be
found in State v. Kaua, 72 P.3d 473 (Haw. 2003).
 KAUA v. FRANK 335
After the jury returned its guilty verdict, the prosecution
moved to extend Kaua’s sentence pursuant to Hawaii Revised
Statutes section 706-662(4)(a). That section provides for an
extended sentence if “[t]he defendant is a multiple offender
whose criminal actions were so extensive that a sentence of
imprisonment for an extended term is necessary for protection
of the public.”4 The section further provides that a court must
find that “[t]he defendant is being sentenced for two or more
felonies or is already under sentence of imprisonment for [a]
felony” in order to impose an extended sentence.5

The Hawaii Supreme Court has ruled that section 706-
662(4) requires the sentencing court to conduct a two-step pro-
cess.6 First, the court must find that the defendant falls within
the class of “multiple offenders” subject to an extended sen-
tence.7 Under section 706-662(4)(a), this first step requires the
court to find that the defendant is being sentenced for two or
more felonies, or is already under sentence of imprisonment
for a felony. Second, the court must determine whether an
extended sentence is necessary for the protection of the public.8

After following the required two-step process, the sentenc-
ing court granted the prosecution’s motion to extend Kaua’s
sentence. The court found that Kaua’s prior conviction for
being a criminal in possession of a firearm and ammunition
and his new convictions satisfied section 706-662(4)(a). The
court then found a number of specific facts, and from these
facts determined that an extended sentence was necessary to
protect the public. These facts included Kaua’s history of sub-
stance abuse; his abuse of drugs shortly before the hostage
standoff; his history of assaultive behavior; his inability to
4
Haw. Rev. Stat. § 706-662(4).
5
Id. at § 706-662(4)(a).
6
State v. Okumura, 894 P.2d 80, 109 (Haw. 1995); State v. Schroeder,
880 P.2d 192, 202-03 (Haw. 1994).
7
Schroeder, 880 P.2d at 202-03.
8
Id. at 203 & n.17.
336 KAUA v. FRANK
control his behavior while under the influence or while under
stress; his access to firearms; his lack of experience using the
weapon with which he perpetrated the standoff; and the strong
possibility that he could have injured minors and innocent
bystanders because of his inexperience.

The court then sentenced Kaua. It extended the sentence for
each of the class-A felonies from the maximum twenty-year
term to life imprisonment with the possibility of parole.9 The
court extended Kaua’s class-B felonies from maximum ten-
year terms to twenty-year terms.10 Finally, it extended Kaua’s
class-C felonies from five-year terms to ten-year terms.11 The
court ordered Kaua’s sentences to run concurrently.

Kaua filed a timely notice of appeal with the Hawaii
Supreme Court on February 28, 2000. On June 26, 2000, the
United States Supreme Court decided Apprendi. Almost one
year later, on May 1, 2001, the Hawaii Supreme Court
affirmed Kaua’s judgment of conviction and sentence.
Although Apprendi already had been decided, Kaua had not
briefed the case or raised any Apprendi issues in his direct
appeal. Thus, the Hawaii Supreme Court did not address
Apprendi when it affirmed Kaua’s sentence.

On March 13, 2002, Kaua filed a Hawaii Rule of Penal
Procedure 35 motion12 with the state trial court for correction
of his sentence based on Apprendi. The trial court denied his
motion. Kaua timely appealed to the Hawaii Supreme Court,
which addressed Kaua’s Apprendi claim and affirmed the trial
court’s denial in a published opinion.13 On August 12, 2003,
9
See Haw. Rev. Stat. §§ 706-659, -661(2).
10
See Haw. Rev. Stat. §§ 706-660(1), -661(3).
11
See Haw. Rev. Stat. §§ 706-660(2), -661(4).
12
Haw. R. Penal P. 35 (“The court may correct an illegal sentence at any
time and may correct a sentence imposed in an illegal manner within the
time provided herein for the reduction of sentence.”).
13
State v. Kaua, 72 P.3d 473 (Haw. 2003).
 KAUA v. FRANK 337
Kaua filed a habeas corpus petition in federal district court in
Hawaii to vacate his sentence pursuant to 28 U.S.C. § 2254.
The district court granted his petition, holding that the Hawaii
Supreme Court’s affirmance of his sentence was contrary to,
and an unreasonable application of, Apprendi. The State
timely appealed the district court’s grant of the petition.

ANALYSIS

I. Standards of review

We review de novo the district court’s grant of Kaua’s peti-
tion for writ of habeas corpus.14 Under 28 U.S.C.
§ 2254(d)(1), a federal habeas petitioner can prevail only if he
can show that the state court’s adjudication of his claim “re-
sulted in a decision that was contrary to, or involved an unrea-
sonable application of, clearly established” Supreme Court
case law.15 “Clearly established” law is the “governing legal
principle or principles set forth by the Supreme Court at the
time the state court render[ed] its decision.”16 A state court
decision is “contrary to” clearly established law if the court
“ ‘applies a rule that contradicts the governing law set forth
in [Supreme Court] cases.’ ”17 “We cannot avoid granting the
writ . . . by positing an alternative reason for the state court’s
[decision] that is entirely distinct from the reason given by the
state court, even if such different reason might have justified
the state court’s action.”18
14
Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003).
15
28 U.S.C. § 2254(d)(1).
16
Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
17
Id. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)).
18
Van Lynn v. Farmon, 347 F.3d 735, 737 (9th Cir. 2003).
338 KAUA v. FRANK
II. The Hawaii Supreme Court’s decision was contrary
to Apprendi

[1] Kaua challenges the Hawaii Supreme Court’s conclu-
sion that Apprendi permits a judge, rather than a jury, to find
the facts required to satisfy step two of section 706-662(4)’s
sentencing process.19 The second step requires a sentencing
judge to determine if extending the defendant’s sentence is
necessary for the protection of the public.20 This inquiry
requires the court to find facts outside of those found by the
jury that expose the defendant to an increased sentence.21
Because Apprendi held that any fact other than the fact of a
prior conviction that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury
and proved beyond a reasonable doubt,22 we agree with Kaua
that a jury must find the facts required to satisfy step two.

The State argues that the public protection finding of step
two is discretionary. In the State’s view, the sentencing
court’s finding that a defendant has been convicted of prior
felonies alone subjects the defendant to an extended sentence.
Because Apprendi exempted the fact of a prior conviction
from its ambit, the State contends that the state court’s appli-
cation of section 706-662(4) was constitutional.

Contrary to the State’s arguments, however, Hawaii courts
repeatedly have interpreted section 706-662(4) to require a
two step process.23 In State v. Okumura, the Hawaii Supreme
19
The State does not dispute that Apprendi applies to Kaua’s case and
that Kaua exhausted his state remedies.
20
Schroeder, 880 P.2d at 203 & n.17.
21
See Kaua, 72 P.3d at 484-85 (“[T]he facts at issue in rendering an
extended term sentencing determination under [section 706-662(4)] impli-
cate considerations completely ‘extrinsic’ to the elements of the offense
with which the defendant was charged and of which he was convicted.”).
22
Apprendi, 530 U.S. at 490.
23
See, e.g., Okumura, 894 P.2d at 109; Schroeder, 880 P.2d at 202.
 KAUA v. FRANK 339
Court stated that both steps of the process “must be followed”
when the prosecution seeks an extended sentence.24 Hawaii
courts never have characterized step two as anything other
than the finding and evaluation of facts.25 The State’s reading
of section 706-662(4), therefore, does not comport with the
Hawaii Supreme Court’s interpretation. In any case, the
Hawaii Supreme Court did not base its dismissal of Kaua’s
Rule 35 motion on the arguments that the State advances.
Because our review is limited to the “reason[s] given by the
24
Okumura, 894 P.2d at 109 (emphasis added); see also id. at 110
(“After the first step of th[e] process has been completed and the defen-
dant has been found by the court to be within the class of offenders speci-
fied by the particular subsection, the court must determine . . . that the
defendant’s commitment for an extended term is necessary for the protec-
tion of the public.”) (internal quotation marks omitted) (omission in origi-
nal) (emphasis added).
25
See, e.g., id. at 110 (requiring the judge to “enter into the record all
findings of fact” that underlie the decision that an extended sentence is
necessary for the protection of the public) (emphasis added).
The Hawaii Supreme Court’s interpretation of section 706-662(4) argu-
ably distinguishes that statute from New York’s persistent felony offender
statute, which was at issue in Brown v. Greiner, 409 F.3d 523 (2d Cir.
2005), petitions for cert. filed, ___ U.S.L.W. ___ (U.S. Aug. 17, 2005)
(No. 05-6789), ___ U.S.L.W. ___ (U.S. Oct. 14, 2005) (No. 05-7035).
Although the language of the two statutes is nearly identical, the Court of
Appeals of New York has explained that “prior felony convictions are the
sole determinate of whether a defendant is subject to enhanced sentencing
as a persistent felony offender.” People v. Rosen, 752 N.E.2d 844, 847
(N.Y. 2001) (emphasis added). Furthermore, that court has interpreted the
second determination, that the public interest will be served by an
extended sentence, not as a factual finding but as “a vague, amorphous
assessment” or “opinion.” Brown, 409 F.3d at 534 (internal quotation
marks omitted). Based on the interpretation of the New York statute previ-
ously adopted, the Second Circuit held in Brown that the Court of Appeals
of New York did not unreasonably apply Apprendi in upholding the per-
sistent felony offender statute. Id. However, to the extent that the Court
of Appeals of New York relied on the pre-Apprendi distinction between
“elemental” facts and “sentencing factors” in its analysis of the statute, see
Rosen, 752 N.E.2d at 847, we disagree with the Second Circuit’s conclu-
sion that the New York court’s decision was not contrary to, or an unrea-
sonable application of, Apprendi. See Brown, 409 F.3d at 534.
340 KAUA v. FRANK
[Hawaii] court,” we cannot adopt the State’s “alternative rea-
son” for affirming the Hawaii Supreme Court’s decision.26

[2] With respect to the Hawaii Supreme Court’s decision,
we disagree with its reasoning that the “extrinsic” nature of
the factual findings required for step two exempt them from
Apprendi’s reach.27 Apprendi made irrelevant any distinction
between facts based on their “intrinsic” or “elemental” quality
for purposes of ascertaining whether the Sixth Amendment
requires a jury to find them.28 Apprendi announced a new rule
that focused on the effect of a court’s finding of fact, not on
the label the statute or the court applied to that fact.29 The
United States Supreme Court plainly set forth this new rule,
stating that “the relevant inquiry is one not of form, but of
effect — does the required finding expose the defendant to a
greater punishment than that authorized by the jury’s guilty ver-
dict?”30 If so, the Sixth Amendment requires a jury, not a
judge, to make the finding.31 Apprendi exempted only one
finding — the fact of a prior conviction — from this “general
rule.”32
26
Van Lynn, 347 F.3d at 737.
27
Kaua, 72 P.3d at 482; see State v. Tafoya, 982 P.2d 890, 900 (Haw.
1999) (“ ‘[I]ntrinsic’ factors, required to be pled in the indictment and
found by the jury, are . . . contemporaneous with, and enmeshed in, the
statutory elements of the proscribed offense. Contrarily ‘extrinsic’ factors
are separable from the offense itself in that they involve consideration of
collateral events or information.”).
28
Apprendi, 530 U.S. at 494 (“[I]t does not matter [how] the required
finding is characterized . . . because labels do not afford an acceptable
answer” to the constitutional question.) (internal quotation marks and
brackets omitted).
29
Id. at 492-94 & n.19 (“[W]hen the term ‘sentence enhancement’ is
used to describe an increase beyond the maximum authorized statutory
sentence, it is the functional equivalent of an element of a greater offense
than the one covered by the jury’s guilty verdict.”) (emphasis added).
30
Id. at 494.
31
Id. at 490.
32
Id. at 490.
 KAUA v. FRANK 341
[3] The sentencing court’s public protection finding, cou-
pled with the finding of multiple felonies, exposed Kaua to a
sentence greater than the jury’s guilty verdict authorized.
Although it was proper for the court to make the multiple fel-
ony finding, under Apprendi, a jury should have made the
public protection finding. The Hawaii Supreme Court’s oppo-
site conclusion, therefore, was contrary to Apprendi.

CONCLUSION

The Hawaii Supreme Court’s affirmance of Kaua’s
extended sentence was contrary to the U.S. Supreme Court’s
decision in Apprendi. The state court applied its “intrinsic-
extrinsic” analysis, which is a variant of the “element-
sentencing factor” distinction that Apprendi explicitly
rejected. Because the effect of the public protection finding
was to increase Kaua’s sentence above that authorized by the
jury’s guilty verdict, the Sixth Amendment required a jury to
make the finding. Therefore, the district court’s grant of
Kaua’s petition for a writ of habeas corpus is AFFIRMED.