Kellogg-Roe v. Gerry ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1408
ZEBADIAH G. KELLOGG-ROE,
Petitioner, Appellant,
v.
RICHARD GERRY, Warden, New Hampshire State Prison,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch and Barron, Circuit Judges,
and Burroughs,* District Judge.
Behzad Mirhashem, Assistant Federal Public Defender, District
of New Hampshire, for appellant.
Elizabeth C. Woodcock, Senior Assistant Attorney General,
Criminal Justice Bureau, for appellee.
November 22, 2021
* Of the District of Massachusetts, sitting by designation.
LYNCH, Circuit Judge. Zebadiah Kellogg-Roe appeals from
the United States District Court for the District of New
Hampshire's denial of his petition for a writ of habeas corpus,
seeking to overturn his 2010 New Hampshire conviction for
aggravated felonious sexual assault of a twelve-year-old girl.
Kellogg-Roe v. Warden, N.H. State Prison, No. 15-cv-116, 2020 WL
1452159, at *1 (D.N.H. April 13, 2020). Kellogg-Roe argues that
denial was error because his Sixth Amendment right to autonomy to
determine the objectives of his defense was violated when, despite
his instructions not to present a defense at trial, his counsel
took certain actions to do so. We affirm the district court's
denial of the petition as it correctly rejected Kellogg-Roe's Sixth
Amendment claim.
I.
The facts in this case are drawn from the state
postconviction court's decision and related documents. Kellogg-
Roe v. Edmark, No. 217-2018-cv-281 (N.H. Super. Ct. Jan. 8, 2019).
In reviewing federal habeas petitions, "a determination of a
factual issue made by a State court shall be presumed to be
correct." 28 U.S.C. 2254(e); see also Jewett v. Brady, 634 F.3d
67, 70 (1st Cir. 2007). Kellogg-Roe does not challenge the
correctness of the state court's factual description.
Kellogg-Roe was charged in March of 2008 in New Hampshire
state court with aggravated felonious sexual assault for sexually
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assaulting a minor under the age of thirteen. Before trial, at
his request, the trial court appointed counsel. He instructed his
counsel multiple times to present no defense at all at trial.
Counsel informed the state trial judge of the request. The court
held a conference in October 2009 to address the matter. The trial
court questioned Kellogg-Roe extensively as to his wishes. Not
all of Kellogg-Roe's answers were clear. Nonetheless, it was clear
that Kellogg-Roe did not want his counsel to present a defense.
The trial judge told Kellogg-Roe that he could not direct his
counsel to present no defense, noting that he always had the choice
of representing himself with counsel on standby, which would place
Kellogg-Roe in "complete control" of his own defense.
His request having been denied, Kellogg-Roe proceeded to
trial represented by counsel. At trial, Kellogg-Roe's counsel
presented an active defense, making an opening statement, cross-
examining six of the prosecution's witnesses, and offering three
defense witnesses. The prosecution introduced evidence that
Kellogg-Roe had had intercourse multiple times with a twelve-year-
old girl, the daughter of a friend, and former girlfriend, of his.
When the victim took the stand to testify, Kellogg-Roe asked his
lawyers not to cross-examine her. Counsel informed the judge of
his request. The judge questioned Kellogg-Roe extensively to
ensure that he understood that if his counsel did not cross-examine
the victim it could be detrimental to his defense. Having
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satisfied himself that Kellogg-Roe understood, the judge then
permitted trial counsel to forgo cross-examination of the victim
as Kellogg-Roe had requested.
It should be noted that Kellogg-Roe's statements to the
judge, both before and during trial, were sometimes inscrutable or
unresponsive to the question posed. When the trial judge asked
him whether he understood that not cross-examining the victim could
be harmful to his defense, Kellogg-Roe first replied "I understand
that you're going to convict me, Your Honor." Asked again, he
answered "I understand that I am in a situation of great
gravity . . . I am attempting to be respectful of [the victim's]
right to privacy." The judge rephrased his question yet again to
try to clarify that Kellogg-Roe understood that not cross-
examining the victim could harm his trial strategy, and Kellogg-
Roe stated "I stipulate to what you say is true," at which point
the trial judge stated "I'll have to accept that." Nevertheless,
Kellogg-Roe was clear with the judge that what he wanted was for
his attorneys to not present a defense. At the October 2009
conference concerning his request for a "silent defense," Kellogg-
Roe said to the judge "[Y]ou are saying that I do not have the
right to ask [my lawyers] to stand down and present no defense, if
I employ them as lawyers," to which the judge replied "No, you
don't have the right to do that, I don't believe."
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The jury found Kellogg-Roe guilty on all four counts of
felonious sexual assault, and Kellogg-Roe was sentenced to forty
years' imprisonment. He appealed his conviction, claiming it was
error for the judge not to permit him his preferred "silent
defense," and alternately claiming that it was error for the trial
court to permit his counsel not to cross-examine the victim in the
case. The New Hampshire Supreme Court rejected his direct appeal
in an unpublished opinion issued August 22, 2013.
Kellogg-Roe then filed a motion for a new trial in
Hillsborough County Superior Court, claiming ineffective
assistance of counsel based on his counsel's alleged failure to
communicate a five-year plea offer to him. The court denied the
motion following an evidentiary hearing. The New Hampshire Supreme
Court declined discretionary review.
Kellogg-Roe filed a pro se federal habeas petition in
the New Hampshire District Court in April of 2015. The court
granted him a stay to allow him to exhaust his state claims and
remedies and appointed postconviction counsel to represent him,
the same counsel who now represents him on this appeal.
Kellogg-Roe also filed a state habeas petition in
Merrimack County Superior Court in May of 2018. In his state
habeas petition, Kellogg-Roe raised five constitutional issues,
including "[d]enial of right to assistance of counsel by depriving
[Kellogg-Roe] of the right to present the defense of his choice."
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He argued that, as a defendant, he had a right to control the
objectives of his representation. He expounded further on this
claim in his reply to the respondent's motion for summary judgment,
arguing that the then-recent Supreme Court case McCoy v. Louisiana,
138 S. Ct. 1500 (2018) supported his argument that the Sixth
Amendment empowers defendants to direct their attorneys to mount
a "silent defense." He specified that this Sixth Amendment right,
based in a client's autonomy to direct the objectives of trial,
was different from the right to effective assistance of counsel.
The state superior court found that counsel's
performance was not deficient under the Strickland standard for
ineffective assistance of counsel claims because lawyers' ethical
obligations require them to take affirmative steps to defend their
clients, and because the trial judge's obligation to maintain an
appearance of fair process would not have allowed him to permit
Kellogg-Roe's counsel to not make any defense. See Strickland v.
Washington, 466 U.S. 668 (1984). The court rejected Kellogg-Roe's
state habeas petition on all claims. Kellogg-Roe then appealed to
the New Hampshire Supreme Court, which, in March of 2019, once
again declined to hear his discretionary appeal. The state
superior court decision is the final state court decision which
articulates the reasons for the rejection of his claims.
Kellogg-Roe then resumed federal habeas proceedings,
filing an amended petition for writ of habeas corpus in June of
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2019. Kellogg-Roe asserted six claims for relief, all stemming
from alleged violations of his Sixth Amendment rights. The Warden
moved for summary judgment.
The court granted the Warden's motion. With respect to
the autonomy claim at issue here, the district court found that
the state superior court's decision was contrary to clearly
established federal law. That was so because the state superior
court used the Strickland standard for ineffective assistance of
counsel claims, rather than the standard applicable to cases where
a client is denied the autonomy to decide the objectives of their
defense. Kellogg-Roe, 2020 WL 1452159, at *6-7. The district court
thus reviewed Kellogg-Roe's autonomy claim de novo. As to the
merits, the court denied Kellogg-Roe's claim, finding that "[t]he
decision to silence defense counsel falls squarely in the domain
of case strategy and thus does not implicate the right of autonomy
secured by the Sixth Amendment." Id. at *8. The district court
granted summary judgment in favor of the Warden on all claims,
denying Kellogg-Roe's petition for a writ of habeas corpus. Id.
at *12.
Kellogg-Roe then appealed to this court in April 2020 on
two issues. We granted a certificate of appealability solely on
the issue of whether he was denied autonomy to direct the
objectives of his defense when his trial counsel presented an
active defense contrary to his express wishes.
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II.
We review a district court's denial of a petition for
writ of habeas corpus de novo. Lee v. Corsini, 777 F.3d 46, 54
(1st Cir. 2015) (citing Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir.
2006)).
The Antiterrorism and Effective Death Penalty Act
("AEDPA"), which governs petitions for writs of habeas corpus,
directs that where a "claim . . . was adjudicated on the merits in
State court," an application for habeas shall be denied except in
certain cases, including where the state court's adjudication was
"contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States." 28 U.S.C. § 2254(d)(1). A state court's
determination is contrary to clearly established federal law "if
the court 'applies a rule that contradicts the governing law set
forth' by the Supreme Court." Gomes v. Brady, 564 F.3d 532, 537
(1st Cir. 2009) (quoting Williams v. Taylor, 529 U.S. 362, 405-06
(2000)).
The Sixth Amendment guarantees that "in all criminal
prosecutions, the accused shall enjoy the right to . . . the
Assistance of Counsel for his defence." U.S. Const. amend. VI.
In Strickland, the Supreme Court maintained that defendants have
a Sixth Amendment right to effective assistance of counsel and
articulated the standard for ineffective assistance of counsel
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claims. 466 U.S. at 686-87. Counsel's performance at trial is
unconstitutionally ineffective only if the defendant can show both
that their performance was deficient, and that this deficient
performance prejudiced the defense. Id. at 687. Separately, the
Sixth Amendment also guarantees a defendant's autonomy to decide
certain aspects of their defense in criminal trials. McCoy, 138
S. Ct. at 1508. Fundamental decisions reserved to the client that
have been recognized by the Supreme Court are whether to "plead
guilty, waive a jury, testify in his or her own behalf, or take an
appeal." Jones v. Barnes, 463 U.S. 745, 751 (1983). McCoy added
a new item to that list: "counsel may not admit her client's guilt
of a charged crime over the client's intransigent objection to
that admission." McCoy, 138 S. Ct. at 1510.
In McCoy, the Supreme Court considered a case where the
defendant, McCoy, on trial for capital murder, instructed his
attorney not to concede at trial that he had committed the triple
murder he was accused of. 138 S. Ct. at 1506. Predicting that
conceding guilt at trial was McCoy's only chance of avoiding the
death penalty at the sentencing phase, McCoy's attorney said in
his opening statement that there was "no way reasonably possible"
that the jury could not conclude, upon hearing the evidence, that
McCoy had caused the victims' deaths. Id. After being convicted
and sentenced to death, McCoy appealed, and the Supreme Court held
in a divided opinion that a defendant has a Sixth Amendment right
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to determine whether his attorney will concede factual guilt at
trial. Id. at 1512.
The Court reasoned that "[a]utonomy to decide that the
objective of the defense is to assert innocence" is protected by
the Sixth Amendment because the proper role of the attorney, as
assistant, is to make decisions about "trial management." Id. at
1508. Strategic or trial management decisions include "what
arguments to pursue, what evidentiary objections to raise, and
what agreements to conclude regarding the admission of evidence."
Id. (quoting Gonzalez v. United States, 553 U.S. 242, 248 (2008)).
Decisions reserved to the client "are not strategic choices about
how best to achieve a client’s objectives; they are choices about
what the client’s objectives in fact are." Id. (emphasis in
original) (citation omitted). McCoy's decision not to concede
factual guilt might not be the wisest strategy for avoiding the
death penalty, the Court reasoned, but he might have other
priorities, such as avoiding the "opprobrium that comes with
admitting he killed family members" or preserving his chance at
exoneration, no matter how small. Id. "Just as a defendant may
steadfastly refuse to plead guilty in the face of overwhelming
evidence against her . . . so may she insist on maintaining her
innocence at the guilt phase of a capital trial." Id.- 10 -
III.
Below, the district court conducted de novo review after
it determined that the state court had applied the incorrect
standard, the Strickland ineffective assistance of counsel
standard, to Kellogg-Roe’s autonomy claim. See McCoy, 138 S. Ct.
1510-11 (holding that where "a client’s autonomy, not counsel’s
competence, is in issue, we do not apply our ineffective-
assistance-of-counsel jurisprudence."). The Warden does not
challenge this finding on appeal. Accordingly, we too apply de
novo review.
Kellogg-Roe concedes that if we were to adopt his
position, it would be an extension of McCoy. Indeed, the right
recognized in McCoy differs from the right Kellogg-Roe asks us to
recognize in several important respects.
The presentation of an active defense, even over the
client's objection, does nothing to subvert the client's desire to
maintain his innocence. By choosing to go to trial, as the
district court correctly pointed out, Kellogg-Roe availed himself
of the presumption of innocence. Counsel did nothing to contradict
this presumption. His lawyers' actions -- presenting an opening
argument, cross-examining the prosecution's witnesses, and putting
forward defense witnesses -- were quite the opposite of conceding
guilt. Trial counsel in this case made the typical kinds of
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decisions attorneys are charged with in order to protest their
client's innocence.
Sister circuits that have considered McCoy's reach have
grappled with the question of whether the presentation of evidence
of mental illness or the invocation of the insanity defense over
a defendant's objection invoke the same concerns that a lawyer's
decision to concede a defendant's guilt over the defendant's
objection do. See United States v. Read, 918 F.3d 712, 720-21
(9th Cir. 2019) (holding that defendants have a Sixth Amendment
right to decide whether or not to mount an insanity defense at
trial, recognizing that an insanity defense "is tantamount to a
concession of guilt"); but see United States v. Roof, 10 F.4th
314, 352-53 (4th Cir. 2021) (holding that defendants have no Sixth
Amendment right to prevent their attorneys from offering mental
health mitigation evidence at the sentencing phase of a capital
trial after guilt has already been established). But those cases
do not have a direct bearing on this case, as Kellogg-Roe does not
suggest that his desire to pursue a "silent defense" was motivated
by a desire to avoid calling into question his sanity.
Kellogg-Roe's "silent defense" also does not fall into
any of the other categories of fundamental decisions that the
Supreme Court has reasoned are reserved to the defendant under the
Sixth Amendment: "whether to plead guilty, waive the right to a
jury trial, testify in one's own behalf, and forgo an appeal."
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See McCoy, 138 S. Ct. at 1508. By mounting a defense at trial,
counsel did not take any of these choices away from Kellogg-Roe.
When a defendant chooses to avail himself of the right
to an attorney, he loses the "power to make binding decisions of
trial strategy in many areas." Faretta v. California, 422 U.S.
806, 820 (1975). And while McCoy suggests that "choices about
what the client's objectives in fact are" should be left to the
defendant alone to make, 138 S. Ct. at 1508, Kellogg-Roe concedes
that the record is silent as to what objective his silent defense
achieves. He thus has not explained how his desire to pursue a
"silent defense" falls outside the realm of trial strategy. Nor
has he explained how "assistance of counsel" would have helped him
to pursue it, given that he could have invoked his Faretta right
to self-representation and seemingly "st[ood] down" himself (with
the help of standby counsel, which he appears to have been offered
early on in the criminal prosecution when he first expressed his
desire to have his counsel play no active role at trial).
Adoption of Kellogg-Roe's position would confuse, rather
than clarify, McCoy's careful delineation between decisions
reserved to the client and those left to the attorney.
IV.
For the foregoing reasons, the decision of the district
court is affirmed.
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