Appellate Case: 25-5057 Document: 50-1 Date Filed: 07/01/2026 Page: 1 FILED United States Court of PUBLISH Appeals Tenth Circuit UNITED STATES COURT OF APPEALS July 1, 2026 FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 25-5057
KYLE QUENTIN SAGO,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the Northern District of Oklahoma (D.C. Nos. 4:23-CV-00492-GKF-MTS & 4:20-CR-00094-GKF-1) _________________________________
Timothy C. Kingston of the Law Office of Tim Kingston, Foley, Alabama, for Defendant-Appellant.
Steven J. Briden, Assistant United States Attorney (Clinton J. Johnson, United States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff- Appellee. _________________________________
Before HOLMES, Chief Judge, MATHESON and FEDERICO, Circuit Judges. _________________________________
FEDERICO, Circuit Judge. _________________________________
Kyle Quentin Sago shot and killed Daniel Morgan, who was unarmed.
He admitted to the shooting during his testimony at trial. A jury convicted Appellate Case: 25-5057 Document: 50-1 Date Filed: 07/01/2026 Page: 2
him of first-degree murder and other crimes related to the shooting. His
convictions and sentence were affirmed by this court on direct appeal.
Sago then brought a motion in the district court to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255, asserting his trial
counsel was ineffective. The district court denied his motion. Sago
petitioned this court for a certificate of appealability (COA), which was
granted on one claim: whether trial counsel was ineffective for conceding
guilt against Sago’s wishes resulting in a failure to subject the prosecution’s
case to a meaningful adversarial testing process. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
I
The factual background of this case is detailed in this court’s prior
opinion on Sago’s direct appeal. See United States v. Sago, 74 F.4th 1152,
1154–55 (10th Cir. 2023). We will briefly recount the facts that are relevant
to this § 2255 appeal.
On July 25, 2020, Sago reconnected with Daniel Morgan, a man he
lived with for a few years as a teenager. Id. at 1154. He drove to a home
Morgan was staying at in Tulsa, Oklahoma and visited with Morgan for
several minutes. Id. Sago departed on good terms but returned to the home
a few hours later for reasons that are unclear. Id. Once he arrived, he called
Morgan’s cell phone repeatedly. Id. Morgan’s girlfriend answered and told
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Sago that Morgan was asleep. Id. at 1154–55. He asked Morgan’s girlfriend
to wake Morgan because he wanted to talk to him. Id. at 1155. Sago waited
in his vehicle. Id. According to Sago, when Morgan woke up and came out
from his home, Morgan threw his phone on the ground, seemed angry, and
began to approach Sago’s vehicle. Id. Sago shot at Morgan several times,
hitting him once in the chest and three times in the back as Morgan ran
away. Id. Sago testified at trial to these facts and that, at the time of the
shooting, he was afraid Morgan may have been armed. Id.
Sago was indicted and charged with one count of first-degree murder
in Indian Country, 18 U.S.C. §§ 1151, 1153, 1111. Sago eventually entered
a plea of guilty to the lesser included offense of second-degree murder as
part of a plea agreement under Federal Rule of Criminal Procedure
11(c)(1)(C). At the scheduled sentencing, the district court rejected the plea
agreement because it concluded the underlying facts met the premeditation
element of first-degree murder and so “the settlement . . . that was
effectuated was the rock bottom” of penalties Sago could face. R. I at 256–
57. The district court then asked if, considering its decision to reject the
plea agreement, Sago wanted to withdraw his guilty plea. Sago confirmed
that he did.
After Sago withdrew his guilty plea, a grand jury returned a
superseding indictment. Sago was charged with four counts: (1) first-degree
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murder in Indian Country, 18 U.S.C. §§ 1151, 1153, 1111; (2) felon in
possession of ammunition, 18 U.S.C. §§ 922(g)(1) & 924(a)(2); (3) felon in
possession of ammunition, 18 U.S.C. §§ 922(g)(1) & 924(a)(2); and (4)
causing death by using and discharging a firearm during and in relation to
a crime of violence, 18 U.S.C. §§ 924(c)(1)(A) & 924(j)(1).
At the pre-trial conference, Sago’s defense counsel requested a jury
instruction for the lesser included offense of second-degree murder, which
the district court approved. Defense counsel also moved the court to
reconsider its prior decision to reject the plea agreement, which the district
court denied. The case then proceeded to a three-day jury trial.
Opening statements occurred on the first day of trial, September 20,
2021. During his opening, defense counsel said:
[DEFENSE COUNSEL]: Everything the government just told you is true. This is not a case of a who-done-it. There’s not going to be any question that Mr. Sago was the shooter that day. The issue for you in this trial is going to be whether or not it was first-degree murder versus a second- degree murder[.] ***
Your job’s going to be from the facts that are presented from this witness stand, do they support that Mr. Sago had premeditation and he went over there that day with the intent of killing the victim or was it the result of something happened after they got there? ***
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We believe that after you hear all the facts, see all the actions of all the parties involved, you’ll make the determination that this was a second-degree murder.
Op. Br. Attachment 4 at 18–19.
Sago testified in his own defense on the third and last day of trial, just
prior to the closing arguments. During the direct examination, he admitted
to being convicted of the prior felonies as set out in the indictment’s felon-
in-possession charges, which was also subject to a stipulation. He also
testified that he shot Morgan:
[SAGO]: When I seen him throw down the phone and start coming out me, I pulled out the – pulled out my gun and I fired a shot which missed him. He seemed like he didn’t even notice that I fired a gun. He just kept on coming, he was charging at the car. So this time I decided – I aimed and I fired and I hit him and he just kept on coming. He just kept on coming. He kept on coming all the way up to my car. I was firing several more shots after this and he just kept on coming.
***
[DEFENSE COUNSEL]: Why did you shoot him again?
[SAGO]: I was scared.
[DEFENSE COUNSEL]: Scared of what?
[SAGO]: Scared he’s going to kill me.
Op. Br. Attachment 6 at 78–79.
The Government then cross examined Sago. During a break from
testimony and outside the presence of the jury, the district court sua sponte
raised to the parties that it may be appropriate to include a self-defense 5 Appellate Case: 25-5057 Document: 50-1 Date Filed: 07/01/2026 Page: 6
jury instruction. The district court’s law clerk asked the district court if it
wanted to address a related lesser included instruction and the district
court said, “No. It’s got to be requested.” Id. at 94. Once the cross
examination resumed, Sago again admitted to shooting Morgan, including
shooting him several times while he was running away:
[GOVERNMENT]: You also agree with me that what you did do was to shoot Daniel in the chest; correct?
[SAGO]: Yes.
[GOVERNMENT]: You also agree with me that you turned – as Daniel turned, ran away, you shot him in the back and then you shot him again and then you shot him again and then you shot at him again hitting the truck; correct?
[GOVERNMENT]: We agree that you shot and killed Daniel; correct?
[SAGO]: Out of fear, yes, correct.
[GOVERNMENT]: Out of fear of what?
[SAGO]: Of my life.
Id. at 95–96.
At the conclusion of Sago’s testimony, the district court informed the
parties outside the presence of the jury that it was adding a self-defense
instruction. Once the jury returned, the parties proceeded to make their
closing arguments. During his closing argument, defense counsel said:
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[DEFENSE COUNSEL]: Yesterday morning when I gave my opening statement, I told you that this was not going to be a who-done-it, that this was going to be a case for you to decide the degree of murder. [Defense counsel discusses inconsistencies in the evidence, goes over Sago’s account of the shooting, how evidence shows there was something odd or violent going on in Morgan’s home.]
But if you believe that it was unreasonable for [Sago] to believe he needed to use self-defense, if you believe that he wasn’t being threatened with unlawful force from Daniel, I believe it reinforces that [Sago]’s proper punishment should be a second- degree murder, not first-degree.
And if you don’t believe the self-defense, that’s our desire is for you to find him guilty of second-degree, which fits the law in this case.
Id. at 108–114.
The jury returned a verdict that same day and found Sago guilty on
all counts. The district court later sentenced Sago to life imprisonment for
the first-degree murder and discharge of a firearm counts, running
consecutively to a sentence of 120 months’ imprisonment for the unlawful
possession of ammunition counts.
Sago filed a direct appeal, where he argued the district court erred
when it did not sua sponte include an imperfect self-defense instruction.
This court reviewed for plain error and affirmed, holding that there was no
error because that instruction is not required unless expressly requested by
the defendant. Sago, 74 F.4th at 1160.
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This court also held that Sago failed to satisfy the third prong of plain
error (error affected substantial rights) because of the ample evidence in
favor of the jury’s verdict – there was no evidence the victim was about to
use deadly force, and there was evidence (including by his own admission)
that Sago shot the victim three times in the back. Id. at 1162–63. The court
noted that it was unlikely the imperfect self-defense instruction would have
changed the outcome given that Sago was convicted of first-degree murder
despite the second-degree murder instruction, asking “[h]ow likely is it on
the facts of this case that the jury would conclude that Mr. Sago
premeditated the murder but then in fact decided to kill Mr. Morgan only
out of fear?” Id. at 1163.
Following affirmance in his direct appeal, Sago moved the district
court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. He asserted his counsel was ineffective for several reasons,
including that his counsel “conced[ed] guilt against [his] wishes resulting
in a failure to subject the prosecution’s case to a meaningful adversarial
testing process.” R. I at 227. The district court analyzed this claim under
the United States v. Cronic framework, where prejudice to the defendant is
presumed when their counsel’s performance effectively “fails to subject the
prosecution’s case to meaningful adversarial testing.” 466 U.S. 648, 658–59
(1984). It held that Sago was not entitled to the Cronic presumption of
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prejudice because (1) trial counsel did not completely fail to contest guilt
given that he challenged premeditation; and (2) trial counsel made opening
and closing statements, cross examined witnesses, requested the second-
degree murder instruction, and presented Sago’s testimony, so he did not
abandon his client or completely fail to participate in the trial proceedings.
In a footnote, the district court held that structural error under McCoy v.
Louisiana, which requires a new trial without harmless error analysis when
counsel usurps the defendant’s Sixth Amendment right to decide the
objectives of his own defense, was not implicated here. 584 U.S. 414, 427–28
(2018). It reasoned McCoy wasn’t implicated because Sago twice tried to
plead guilty to second-degree murder and admitted he shot and killed
Morgan during his trial testimony, thus distinguishing the case from the
facts of McCoy, where the defendant “steadfastly” asserted factual
innocence to the charged crimes. R. I at 264 n.7.
The district court then analyzed Sago’s motion under Strickland v.
Washington, the standard two-step framework for ineffective assistance of
counsel claims, where the inquiry is first whether counsel’s performance
was deficient and then whether counsel’s deficient performance prejudiced
the defendant. 466 U.S. 668, 687 (1984). It found that Sago failed to satisfy
either prong of Strickland. The district court held the first prong wasn’t
satisfied because counsel’s decision to focus on contesting premeditation
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rather than pursuing acquittal through self-defense was a sound trial
strategy given the lack of evidence that Morgan had a weapon and
admission that Sago shot Morgan in the back three times. The district court
found that the second Strickland prong was not satisfied for the same
reasons that this court previously found no prejudice on plain error in the
direct appeal.
The district court denied Sago’s § 2255 motion, denied a COA, and
entered final judgment on April 4, 2025. Sago appealed and filed a pro se
brief requesting a COA from this court. The Government did not respond.
This court granted a COA for one claim: whether “trial counsel was
ineffective for conceding guilt against Mr. Sago’s wishes resulting in a
failure to subject the prosecution’s case to a meaningful adversarial testing
process.” Doc. 16.
II
On appeal, Sago’s primary argument is that his trial counsel
committed structural error under McCoy when he conceded Sago’s guilt to
second-degree murder at trial. He argues in the alternative that his counsel
was ineffective for the same reason and that he can demonstrate prejudice
pursuant to Strickland. Additionally, he asserts that the district court
abused its discretion by not holding an evidentiary hearing on his motion
and, finally, that his trial counsel was ineffective in not requesting an
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instruction for imperfect self-defense. A COA was granted on only one issue,
so prior to our analysis we must determine whether the arguments Sago
raises are within its scope. See Fields v. Gibson, 277 F.3d 1203, 1216 n.8 (10th
Cir. 2002) (“‘[A]ppellate review of the habeas denial is limited to the
specified issues’ in the certificate of appealability.” (quoting Ramsey v.
Bowersox, 149 F.3d 749, 759 (8th Cir. 1998) (alteration in original))).
The COA was granted on the issue of whether “trial counsel was
ineffective for conceding guilt against Mr. Sago’s wishes resulting in a
failure to subject the prosecution’s case to a meaningful adversarial testing
process.” Doc. 16. Sago’s arguments regarding Strickland error, the
evidentiary hearing, and the imperfect self-defense instruction are beyond
the scope of the COA so will not consider them. The more difficult question
is whether the COA encompasses Sago’s argument regarding McCoy
structural error.
The COA’s language mirrors that of Cronic, 466 U.S. 648. In Cronic,
the Supreme Court held that counsel’s failure to “subject the prosecution’s
case to meaningful adversarial testing” was a “denial of [a defendant’s]
Sixth Amendment rights” such that prejudice to the defendant should be
presumed. Id. at 659–60. And the district court’s order denying Sago’s
§ 2255 motion primarily analyzed counsel’s concession of Sago’s guilt to
second-degree murder under Cronic.
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Sago’s briefing on appeal, however, argues structural error primarily
under McCoy, not Cronic error. McCoy error, where a harmless error
analysis is not undertaken at all, is separate from Cronic error. See McCoy,
584 U.S. at 426–27. McCoy was decided in 2018 and prior to that, this circuit
analyzed the “admission by counsel of his client’s guilt to the jury” without
authorization under Cronic. See, e.g., United States v. Williamson, 53 F.3d
1500, 1511 (10th Cir. 1995). Therefore, the COA in this case can be read
narrowly to encompass only Cronic error or broadly to encompass both
Cronic and McCoy error.
There is no need to dwell on the breadth of the COA’s language,
however, because Sago’s counsel requested at oral argument that we
exercise our discretion to expand the COA so as to consider both McCoy and
Cronic errors. We will exercise our discretion to do so and proceed by
analyzing Sago’s arguments under McCoy and then under Cronic. See Honie
v. Powell, 58 F.4th 1173, 1183 (10th Cir. 2023) (This court has “authority ‘to
expand the COA to cover uncertified, underlying constitutional claims
asserted by an appellant.’” (quoting United States v. Shipp, 589 F.3d 1084,
1087–88 (10th Cir. 2009))).
For a denial of a § 2255 motion, we generally review the district court’s
factual findings for clear error and conclusions of law de novo. United States
v. Aguayo-Montes, 169 F.4th 1205, 1209 (10th Cir. 2026). “Where, as here, the
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district court did not hold an evidentiary hearing, but rather denied the
motion as a matter of law upon an uncontested trial record, our review is
strictly de novo.” Id. (alterations accepted) (quoting United States v. Barrett,
797 F.3d 1207, 1213 (10th Cir. 2015)).
A
Sago argues that his trial counsel’s concession that the evidence
supported a second-degree murder charge amounted to a usurpation of his
autonomy constituting structural error under McCoy. 1 Sago asserts that he
1 There seems to be an open question whether McCoy error, like ineffective assistance of counsel claims, can only be brought via postconviction review or if, like other claims of structural error, it should be raised on direct appeal to be preserved and benefit from automatic reversal. Ineffective assistance of counsel claims are usually dismissed on direct appeal to allow for the development of factual support, including trial counsel’s explanation for his or her actions. United States v. Poterbin, 162 F.4th 1254, 1265–66 (10th Cir. 2025). For structural error, the general rule is that when it is unpreserved and raised first in postconviction proceedings as an ineffective assistance of counsel claim, “courts must determine whether the petitioner needs to show actual prejudice–as is required under Strickland–or whether automatic reversal is warranted–the remedy used for structural errors.” Meadows v. Lind, 996 F.3d 1067, 1076 (10th Cir. 2021). This may occur when trial counsel fails to object to a structural error before a lower court (e.g., lack of a public trial) and therefore implicates considerations underlying waiver doctrine. Id. We do not answer this question here but observe that even if Sago’s McCoy claim is unpreserved, a showing of actual prejudice under Strickland on postconviction review would not be appropriate given the Supreme Court’s express language stating that Strickland does not apply to McCoy claims. See McCoy, 584 U.S. at 426–27; see also United States v. Felicianosoto, 934 F.3d 783, 787 (8th Cir. 2019) (doubting that a defendant who proves McCoy error in a postconviction posture would be required to show prejudice).
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“repeatedly asked defense counsel before and during trial to request an
instruction on [the] lesser included defense” of imperfect self-defense and
that “defense counsel’s strategy conceding guilt to second degree murder
and the other charges was against [his] wishes and unauthorized.” Op. Br.
at 18.
When “a client’s autonomy, not counsel’s competence, is in issue, we
do not apply our ineffective-assistance-of-counsel jurisprudence.” McCoy,
584 U.S. at 426 (discussing how Strickland and Cronic do not apply).
“Violation of a defendant’s Sixth Amendment-secured autonomy ranks as
[structural error]” that “is not subject to harmless-error review.” Id. at 427.
“[C]ounsel’s admission of a client’s guilt over the client’s express objection
is error structural in kind” because it “blocks the defendant’s right to make
the fundamental choices about his own defense.” Id. at 427–28. This “free-
standing autonomy claim” does not encompass “strategic disputes about
whether to concede an element of a charged offense.” United States v.
Holloway, 939 F.3d 1088, 1101 n.8 (10th Cir. 2019) (quoting McCoy, 584 U.S.
at 426); see also Crawford v. Mississippi, 146 S. Ct. 33, 38 (2025) (mem.)
(Sotomayor, J., dissenting) (“‘Just as a defendant may steadfastly refuse to
plead guilty in the face of overwhelming evidence against him, or reject the
assistance of legal counsel despite the defendant’s own inexperience,’ so too
may a defendant ‘insist on maintaining his innocence.’ That is because
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‘these are not strategic choices about how best to achieve his objectives’ but
rather ‘choices about what his objectives in fact are.’” (alterations accepted)
(quoting McCoy, 584 U.S. at 422)).
In McCoy, the defendant continuously and “vociferously insisted that
he did not engage in the charged acts and adamantly objected to any
admission of guilt.” 584 U.S. at 417. Specifically, he (1) pleaded not guilty;
(2) told his counsel not to make a concession of guilt even after being advised
it might save him from the death penalty; (3) testified to his complete
innocence and asserted an alibi; (4) tried to terminate representation when
counsel would not comply with his desire not to concede guilt; (5) protested
contemporaneously to his counsel’s concession of guilt during opening
statements, saying his counsel was selling him out; and (6) moved for a new
trial, arguing it was error to allow his counsel to concede guilt. Id. at 418–
20. Contrary to the defendant’s express wishes, his counsel told the jury
that he “committed three murders. . . . [H]e’s guilty.” Id. at 417 (alterations
in original). The Supreme Court held that such an admission was an “error
structural in kind” and that the defendant “must . . . be accorded a new trial
without any need first to show prejudice.” Id. at 427–28.
Here, Sago points to nothing in the record that indicates he disagreed
with or objected to his counsel’s trial strategy contemporaneously. He did
not maintain his innocence throughout the entirety of the proceedings,
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protest his counsel’s statements during trial or otherwise to the district
court, or attempt to fire his counsel or obtain new representation. In this
way, the facts of this case are less like McCoy and more like those of Florida
v. Nixon, where the Supreme Court held that cases where a defendant
challenges his counsel’s strategic concession of guilt that occurred without
the defendant’s express objection or consent should be analyzed under the
Strickland standard. 543 U.S. 175, 178–79, 189 (2004) (“[W]hen a defendant,
informed by counsel, neither consents nor objects to the course counsel
describes as the most promising means to [achieving his defense goals],
counsel is not automatically barred from pursuing that course.”). While
Sago asserts in these postconviction proceedings that he never agreed to his
counsel’s concession of guilt, there is no indication he “object[ed] to th[is]
course” when it was ongoing. Id. at 178. Sago’s autonomous right to decide
the objectives of his defense was not usurped by his counsel.
Furthermore, there is indication in the record that Sago affirmatively
agreed with his counsel’s trial strategy and presentation to the jury. Sago
entered into a Rule 11(c)(1)(C) agreement and tried to plead guilty to second-
degree murder, although the district court declined to accept the agreement.
His counsel then moved the district court to reconsider its rejection of the
plea agreement at the pre-trial hearing that occurred just prior to trial.
While Sago ultimately withdrew his guilty plea and proceeded to trial on a
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not guilty plea, his two attempts to plead guilty at least signal that his
mindset regarding the goals of his defense was not to assert absolute
innocence. Rather, Sago’s goal was to mitigate his sentencing exposure after
admitting culpability, which is aligned with the strategy his counsel
pursued during trial. This is even more apparent considering Sago himself
admitted on the witness stand during direct and cross examinations that he
shot and killed Morgan from inside his vehicle and didn’t testify on direct
to seeing Morgan armed.
Indeed, unlike the defendant in McCoy, Sago at no point maintained
factual innocence of the actions underlying the charged crime. Rather, his
own stated goal from trial through these postconviction proceedings was
mitigation of first-degree murder – though Sago wished to mitigate using
imperfect self-defense rather than only contesting premeditation. Thus, the
record supports the conclusion that Sago’s counsel honored Sago’s choice
about what his objectives were and pursued a trial strategy consistent with
those objectives. Sago may now voice post hoc disagreement with his
counsel’s strategy, or perhaps even consider his counsel’s performance
deficient, but this present grievance is not redressable under McCoy. See
Holloway, 939 F.3d at 1101 n.8.
Here, Sago never insisted on maintaining his innocence of shooting
Morgan. To the contrary, he admitted to the shooting during his testimony.
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What this record shows is that Sago and his counsel wanted to pursue a
strategy of mitigation and that Sago never contemporaneously objected to
counsel’s strategic choices to achieve that objective at trial. Sago now
asserts that he disagreed with counsel’s strategy and didn’t know his
counsel was going to concede his guilt to second-degree murder. But McCoy
requires more, to wit, at least some contemporaneous indication of such a
disagreement in the record. No structural McCoy error occurred here. We
turn next to Sago’s argument that his counsel erred under Cronic.
B
Sago appears to briefly argue that the district court erred by not
applying the Cronic presumption of prejudice to his claim that his counsel
erred by conceding Sago’s guilt to second-degree murder. “In certain Sixth
Amendment contexts, prejudice is presumed. Actual or constructive denial
of the assistance of counsel altogether is legally presumed to result in
prejudice.” Strickland 466 U.S. at 692. The “situations when Strickland
does not apply such that a court may presume prejudice without inquiring
into counsel’s performance” include “a breakdown in the adversarial
process” in which “counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing.” Hooks v. Workman, 689 F.3d 1148, 1185–86
(10th Cir. 2012) (internal quotations marks and citations omitted).
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Sago does not argue that his counsel completely failed to subject the
Government’s evidence and presentation to adversarial testing beyond the
concession to second-degree murder. On our review of the record, we find
that Sago’s counsel did not completely fail to subject the Government’s case
to the adversarial process. Sago’s counsel did not concede his guilt to the
charged crime of first-degree murder, challenged the premeditation element
at trial, requested a lesser included offense instruction for second-degree
murder, vigorously cross examined witnesses, presented Sago’s testimony
in his defense, and made opening and closing arguments, including briefly
arguing in support of Sago’s assertion of self-defense. We have previously
held that the Cronic presumption of prejudice is not applicable under
similar circumstances and do again on this record. See Hooks, 689 F.3d at
1186.
In sum, Sago fails to establish either McCoy or Cronic error, and a
Strickland analysis is outside the scope of the COA granted in this case.
AFFIRMED. Sago’s motion to supplement the brief in support of his
motion for a COA, Doc. 13, is DENIED as moot.