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,

, 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,

, 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

- 2 - 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

- 3 - 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."

- 4 - 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."

- 5 - 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,

(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,

(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

- 6 - 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,

, 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.

- 7 - II.

We review a district court's denial of a petition for

writ of habeas corpus de novo. Lee v. Corsini,

(1st Cir. 2015) (citing Lynch v. Ficco,

(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."

(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,

(1st Cir. 2009) (quoting Williams v. Taylor,

(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

- 8 - claims.

. 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.

. Separately, the

Sixth Amendment also guarantees a defendant's autonomy to decide

certain aspects of their defense in criminal trials. McCoy,

. 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,

(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,

.

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.

. 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.

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

- 9 - to determine whether his attorney will concede factual guilt at

trial.

.

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."

. 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."

(quoting Gonzalez v. United States,

(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."

(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.

"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."

- 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,

-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

- 11 - 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,

(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,

(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."

- 12 - See McCoy,

. 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,

(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,

, 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.

- 13 -