Zebadiah Kellogg-Roe v. Warden, NH State Prison

2020 DNH 049

• Court: District Court, D. New Hampshire
• Decided: March 25, 2020
• Docket: 15-cv-116-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Zebadiah Kellogg-Roe

v. Case No. 15-cv-116-PB Opinion No. 2020 DNH 049 Warden, NH State Prison

MEMORANDUM AND ORDER

Zebadiah Kellogg-Roe was convicted in 2008 of four counts

of aggravated felonious sexual assault and sentenced to an

aggregate term of twenty to forty years in state prison. He has

petitioned this court for a writ of habeas corpus pursuant to 28

U.S.C. § 2254, on the ground that his Sixth Amendment rights

were violated. His jailer, the Warden of the New Hampshire

State Prison, moves for summary judgment. For the following

reasons, I grant the Warden’s motion.

I. BACKGROUND 1

A. Trial Proceedings

Kellogg-Roe was charged in the Hillsborough County Superior

Court with aggravated felonious sexual assault for engaging in

sexual intercourse with a child under the age of thirteen. He

1 The facts have been gleaned from the record before, and the decisions of, the state courts involved in Kellogg-Roe’s trial, post-conviction litigation, and appeals. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011). pleaded not guilty to the charges, and two public defenders were

appointed to represent him. Prior to trial, he requested that

his counsel “stand down and present no defense.” Doc. No. 120-

5, Ex. 4-C at 5 (filed conventionally). Defense counsel

promptly sought a ruling from the trial court on this so-called

“silent defense.” Although Kellogg-Roe refused at the hearing

to answer questions about the role he envisaged for his counsel,

it became apparent that he wished counsel to do “absolutely

nothing” to oppose the prosecution’s case. See id. at 5-6.

The trial court denied his request. The court informed

Kellogg-Roe that he could dispense with counsel and represent

himself if he wanted to control trial strategy. But if he chose

to be represented by counsel, Kellogg-Roe had no right to insist

that counsel abide by his preferred “silent defense” and

abdicate their ethical obligation to zealously defend him, the

court explained. Kellogg-Roe’s wishes notwithstanding, defense

counsel could “make an opening statement, cross[-]examine

witnesses, make closing statements, and do things of that nature

in this case that they thought are necessary.” Id. at 4. So

informed, Kellogg-Roe still opted to be represented by counsel.

At trial, the prosecution presented evidence that Kellogg-

Roe had admitted on multiple occasions (including to one of his

neighbors, his acupuncturist, and the police) that he had

engaged in sexual intercourse with a twelve-year-old girl. He

2 has never challenged the admissibility of those admissions. The

victim also testified that Kellogg-Roe had had sexual

intercourse with her many times during a four-month period in

2001, when she had lived with him. The victim’s mother

testified that she had grown suspicious of Kellogg-Roe after

finding the victim in Kellogg-Roe’s bed clad only in a towel,

and that soon after the victim had told her that Kellogg-Roe had

had sex with the victim.

Defense counsel contested Kellogg-Roe’s guilt. They made

an opening statement, a closing argument, cross-examined six of

the twelve prosecution witnesses, and called three defense

witnesses. The defense’s theory was that Kellogg-Roe had

falsely confessed to the crime, owing to his philosophy of non-

resistance in the face of adversity, summarized by the phrase

“suffer and permit.” The victim, the defense suggested, had

been raped by another man and had asked Kellogg-Roe to confess

instead.

After the victim testified, Kellogg-Roe’s counsel stood up

to cross-examine her, but Kellogg-Roe rose too and asked counsel

not to proceed. After excusing the jury, the trial court

engaged in a colloquy with Kellogg-Roe. The court advised him

that cross-examining the victim might be “helpful” and that

foregoing it might have a “deleterious” or “adverse impact” on

his defense. See Trial Tr. 185-91 (filed conventionally).

3 Kellogg-Roe responded that he understood the repercussions and

expected he would be found guilty, but he wanted to spare the

victim from “uncomfortable” questioning and be “respectful of

[her] right to privacy.” Id. at 187-88. The trial court

decided to “honor” Kellogg-Roe’s decision. Id. at 191. His

counsel followed his instruction and did not cross-examine the

victim, explaining to the jury that this was done at Kellogg-

Roe’s request.

The jury found Kellogg-Roe guilty on all four counts of

aggravated felonious sexual assault. On April 1, 2010, he was

sentenced to twenty to forty years in state prison.

B. Post-Conviction Proceedings

Kellogg-Roe appealed his conviction to the New Hampshire

Supreme Court (“NHSC”), advancing two claims. First, he argued

that the trial court erroneously deprived him of his right under

the Sixth Amendment and state law to insist on a silent defense.

In the alternative, he contended that the court erred in ceding

control to Kellogg-Roe over the decision whether to cross-

examine the victim. The NHSC affirmed his conviction in an

unpublished order in August 2013. See Doc. No. 9.

On the first claim, the NHSC stated that Kellogg-Roe had

“incorrectly assumed” the existence of a general rule that “a

represented defendant has the constitutional right to control

‘the fundamental plan of defense.’” Id. at 2. Because he then,

4 “quite understandably,” did not advance an argument why the NHSC

should adopt that rule, the court “decline[d] to hypothesize

whether an exception to a rule that we have not yet adopted

would exist should a defendant seek a silent defense.” Id. The

NHSC also declined to decide the second claim because the

argument was “insufficiently developed.” Id.

In November 2013, Kellogg-Roe filed a motion for a new

trial in the Hillsborough County Superior Court based on

ineffective assistance of counsel. He alleged that his trial

counsel had failed to convey to him a plea offer of a five-year

sentence. The post-conviction court denied the motion in March

2015, following an evidentiary hearing where Kellogg-Roe, both

his trial attorneys, and the prosecutor in the underlying case

testified. The court found that his counsel had communicated

the plea offer to Kellogg-Roe, which he “understood and chose

not to accept.” Doc. No. 1 at 22. The NHSC declined

discretionary review in October of that year.

In the interim, Kellogg-Roe filed a federal habeas petition

in April 2015, appearing pro se. This court granted a stay to

allow him to exhaust his state court remedies as to the claims

in his petition and later appointed counsel to represent him.

Represented by the same post-conviction counsel, Kellogg-

Roe filed a state habeas petition in the Merrimack County

5 Superior Court in May 2018, asserting five of the six claims he

advances in his federal habeas petition:

(1) Denial of right to the assistance of counsel by depriving [Kellogg-Roe] of the right to present his defense of choice. (2) Denial of right to the assistance of counsel by depriving [Kellogg-Roe] of the right to cross- examination by counsel of the key prosecution witness. (3) Denial of the right to cross-examination. (4) Denial of the right to effective assistance of counsel at trial. (5) Denial of the right to effective assistance of appellate counsel.

Doc. No. 120-6 at 5-6. In January 2019, the post-conviction

court denied Kellogg-Roe’s petition on cross-motions for summary

judgment.

At the outset, the post-conviction court determined that

all five claims were subject to the standard for ineffective

assistance of counsel articulated in Strickland v. Washington,

466 U.S. 668 (1984), which requires deficient performance by

counsel resulting in prejudice. The court construed the claims

as asserting either deprivation of counsel or ineffective

assistance of counsel but found the distinction irrelevant

because “the standard for ineffective counsel and for being

deprived of any counsel at all are . . . one in the same.” Doc.

No. 120-6 at 7. The court then determined that all claims

failed both prongs of the Strickland test.

6 The first claim, based on the denial of Kellogg-Roe’s

request for a “silent defense,” failed the deficiency prong

because counsel had the ethical obligation to zealously

represent him, and the trial court had properly instructed

counsel to fulfill that function. See Doc. No. 120-6 at 7-9.

The second claim failed because allowing counsel to follow their

client’s directive not to cross-examine the victim was

objectively reasonable where Kellogg-Roe was fully informed of

the folly of his decision. See id. at 9-10. The court rejected

the third claim on the ground that Kellogg-Roe had made a

knowing, intelligent, and voluntary waiver of his right to

cross-examine the victim. See id. at 10-11. The fourth claim,

premised on ineffective assistance of counsel for neither

refraining from defending him altogether nor cross-examining the

victim, was deemed “merely a rehashing of prior arguments, and

without merit.” Id. at 11. The fifth claim failed because

appellate counsel’s performance was not deficient where “the law

was clearly against” Kellogg-Roe and counsel neither “neglected

to raise an argument [n]or did so frivolously [n]or poorly.”

Id. at 12. Finally, the court held that even if Kellogg-Roe had

proved deficient performance as to any of his claims, he could

not establish prejudice considering the “overwhelming evidence

against him,” including “his many admissions.” Id. at 12. The

7 post-conviction court thus denied the state habeas petition.

The NHSC declined to take discretionary appeal in March 2019.

This court thereafter lifted the stay and Kellogg-Roe filed

an amended federal habeas petition, which is the operative

pleading in this matter. See Doc. No. 118. In addition to the

five claims raised in Kellogg-Roe’s state habeas petition, his

amended federal habeas petition asserts ineffective assistance

of counsel during plea negotiations - a claim he had exhausted

in state court prior to filing his state habeas petition. The

Warden now moves for summary judgment, and Kellogg-Roe objects.

II. STANDARDS OF REVIEW

A. Standard for Reviewing State Court Decisions

A federal court may grant habeas corpus relief “only on the

ground that [a person] is in custody in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). Under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), if a state court has adjudicated

a petitioner’s claims on the merits, habeas relief is warranted

only if the adjudication (1) “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” id.

§ 2254(d)(1), or (2) “was based on an unreasonable determination

8 of the facts in light of the evidence presented in the State

court proceeding,” id. § 2254(d)(2).

A state court adjudication is contrary to clearly

established federal law if the court “applies a rule that

contradicts the governing law set forth by the Supreme Court or

confronts a set of facts that are materially indistinguishable

from a decision of the Supreme Court and nevertheless arrives at

a result different from its precedent.” Chum v. Coyne-Fague,

948 F.3d 438, 443 (1st Cir. 2020) (internal quotation marks and

brackets omitted). A state court’s decision unreasonably

applies clearly established federal law “if the state court

identifies the correct governing legal principle from the

Supreme Court’s then-current decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Abrante v.

St. Amand, 595 F.3d 11, 15 (1st Cir. 2010) (internal quotation

marks omitted). To be unreasonable, a state court’s application

of existing legal principles must be “so lacking in

justification that there was an error well understood and

comprehended in existing law beyond any possibility for

fairminded disagreement.” Virginia v. LeBlanc, 137 S. Ct. 1726,

1728 (2017) (per curiam) (internal quotation marks omitted).

The mode of analysis under 28 U.S.C. § 2254(d) depends on

whether a state court’s decision is accompanied by reasoning.

See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). If no

9 reasoning accompanies the decision, the federal habeas court

must “determine what arguments or theories . . . could have

supported, the state court’s decision.” Harrington v. Richter,

562 U.S. 86, 102 (2011). But if there is a reasoned decision,

either from the last state court to decide a prisoner’s federal

claim or a lower state court, the “federal habeas court simply

reviews the specific reasons given by the state court and defers

to those reasons if they are reasonable.” Wilson, 138 S. Ct. at

1192. In other words, § 2254(d) “requires the federal habeas

court to train its attention on the particular reasons — both

legal and factual — why state courts rejected a state prisoner’s

federal claims, and to give appropriate deference to that

decision.” Id. at 1191-92 (internal quotation marks and

citations omitted).

B. Summary Judgment Standard

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). In this context, a “material fact” is one that has the

“potential to affect the outcome of the suit.” Cherkaoui v.

City of Quincy, 877 F.3d 14, 23 (1st Cir. 2017) (internal

quotation marks omitted). A “genuine dispute” exists if a jury

could resolve the disputed fact in the nonmovant’s favor. Ellis

v. Fidelity Mgmt. Tr. Co., 883 F.3d 1, 7 (1st Cir. 2018).

10 With one exception not pertinent to my decision, the

parties agree that no material facts are in dispute and that I

may resolve the Warden’s motion on the record submitted. 2

III. ANALYSIS

Kellogg-Roe asserts six claims for relief, all premised on

alleged violations of his Sixth Amendment rights. Three of his

claims stem from the state trial court’s allocation of control

over the defense as between Kellogg-Roe and his counsel. The

other claims allege a violation of his right to cross-examine a

witness, ineffective assistance of counsel in plea negotiations,

and ineffective assistance of appellate counsel. I address the

claims in turn and conclude that none warrants habeas relief.

A. Control over the Defense (Claims 1, 2, and 4) 3

Kellogg-Roe pleaded not guilty and chose to be represented

by counsel at trial but wanted his counsel to do nothing in

terms of putting on a defense or opposing the prosecution’s

case. Simply put, he wanted to silence his counsel. The state

trial court denied his request, empowering defense counsel to

function as counsel and make judgments about trial strategy.

2 The exception involves the question as to whether one of the claims is time barred. Because I reject that claim on the merits, I need not decide the statute of limitations question.

3 The claims are numbered based on their sequence in Kellogg- Roe’s amended federal habeas petition. See Doc. No. 118. 11 When defense counsel sought to cross-examine the victim,

however, the trial court honored Kellogg-Roe’s request to forego

cross-examination. Kellogg-Roe argues that his Sixth Amendment

rights were violated because he was not permitted to control the

objectives of his defense in the first instance, or,

alternatively, because his defense counsel was subsequently

compelled to obey one of his specific strategic demands.

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defence.” The Supreme Court

has recognized various categories of claims subsumed within the

right to the assistance of counsel, including (1) ineffective

assistance of counsel (“ineffectiveness claims”), see

Strickland, 466 U.S. at 688; (2) complete deprivation of the

assistance of counsel (“deprivation claims”), see United States

v. Cronic, 466 U.S. 648, 659 (1984); and (3) violation of a

defendant’s autonomy to decide the objectives of his defense

(“autonomy claims”), see McCoy v. Louisiana, 138 S. Ct. 1500,

1508 (2008). A key difference among these categories is whether

a showing of prejudice is an essential component of the claim.

Ineffectiveness claims, which encompass most right-to-

counsel claims, are governed by the familiar Strickland

standard. A defendant must prove deficient performance by

counsel that resulted in prejudice. Strickland, 466 U.S. at

12 687. Counsel’s performance was deficient if it fell below an

objective standard of reasonableness under the circumstances.

Id. at 687–88. “Judicial scrutiny of counsel’s performance must

be highly deferential.” Id. at 689. “[A] reviewing court must

not lean too heavily on hindsight: a lawyer’s acts and omissions

must be judged on the basis of what he knew, or should have

known, at the time his tactical choices were made and

implemented.” Ouber v. Guarino, 293 F.3d 19, 25 (1st Cir.

2002). “To establish prejudice, the defendant must show that,

but for counsel’s unprofessional error, there is a reasonable

probability that the result of the proceeding would have been

different.” Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir.

2007). Stated differently, prejudice requires “a reasonable

probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt.” Strickland, 466 U.S.

at 695.

By contrast, deprivation claims are reserved for a narrow

set of errors that result in actual or constructive denial of

the assistance of counsel altogether during a critical stage of

the proceedings. 4 See Strickland, 466 U.S. at 692; Cronic, 466

4 “[A] critical stage . . . denote[s] a step of a criminal proceeding, such as arraignment, that held significant consequences for the accused.” Bell v. Cone, 535 U.S. 685, 695– 96 (2002) (internal quotation marks and citations omitted).

13 U.S. at 659. The Supreme Court has identified three specific

circumstances where such a deprivation occurs: (1) when there is

“complete denial of counsel,” meaning that “counsel was either

totally absent, or prevented from assisting the accused during a

critical stage of the proceeding,” Cronic, 466 U.S. at 659 &

n.25; (2) when “counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing,” id. at

659; and (3) when “counsel is called upon to render assistance

under circumstances where competent counsel very likely could

not,” Bell, 535 U.S. at 696 (citing Cronic, 466 U.S. at 659-62).

Prejudice is presumed in these circumstances because they are

tantamount to having no counsel at all and thus are “so likely

to prejudice the accused that the cost of litigating their

effect in a particular case is unjustified.” Cronic, 466 U.S.

658. Therefore, actual or constructive denial of counsel is a

structural error that entitles a defendant to “automatic

reversal” regardless of the error’s actual “effect on the

outcome.” See Neder v. United States, 527 U.S. 1, 7 (1999).

Autonomy claims, meanwhile, are premised on violations of a

defendant’s “right to make the fundamental choices about his own

defense.” McCoy, 138 S. Ct. at 1511. The “right to defend”

granted to the defendant “personally” in the Sixth Amendment

protects not only his right to self-representation, see Faretta

v. California, 422 U.S. 806, 834 (1975), but also ensures that

14 if the defendant chooses to be represented by counsel he retains

the “[a]utonomy to decide . . . the objective of the defense.”

McCoy, 138 S. Ct. at 1508. A represented defendant surrenders

control to counsel over tactical decisions at trial while

retaining the right to be the “master” of his own defense. See

id.; Faretta, 422 U.S. at 820. Counsel can make decisions over

matters of trial management, such as “the objections to make,

the witnesses to call, and the arguments to advance.” Gonzalez

v. United States, 553 U.S. 242, 249 (2008). But the defendant

has “the ultimate authority to make certain fundamental

decisions regarding the case.” Jones v. Barnes, 463 U.S. 745,

751 (1983). The latter category of decisions “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.”

McCoy, 138 S. Ct. at 1508. Those autonomous decisions that are

reserved exclusively for the defendant include whether to plead

guilty, waive the right to a jury trial, testify in one’s own

behalf, take an appeal, and admit guilt of a charged crime. See

id.; Jones, 463 U.S. at 751. As with deprivation claims,

usurpation of a defendant’s autonomy is a structural error,

obviating the need to show prejudice. See McCoy, 138 S. Ct. at

1511.

Kellogg-Roe asserts all three types of Sixth Amendment

claims. In Claim 1, he argues that the trial court violated his

15 right of autonomy to decide the objectives of his defense when

it overrode his demand that defense counsel do nothing at trial.

In Claim 2, he argues that he was completely deprived of counsel

when the trial court allowed him rather than his counsel to

control the decision whether to cross-examine the victim. And

in Claim 4, he asserts that defense counsel rendered ineffective

assistance when they neither abided by his decision to refrain

from defending him nor cross-examined the victim. The post-

conviction court applied the Strickland test to all three claims

on the ground that “the standard for ineffective counsel and for

being deprived of any counsel at all are . . . one in the same.”

See Doc. No. 120-6 at 7. The post-conviction court then denied

the claims because Kellogg-Roe proved neither deficient

performance by counsel nor any prejudice. I review the court’s

decision with respect to each claim sequentially.

1. Rejection of Kellogg-Roe’s Decision to Silence Defense Counsel as Violation of His Autonomy (Claim 1)

In his first claim, Kellogg-Roe alleges a violation of his

right to autonomously decide on the objectives of his defense,

which he claims was to present no defense whatsoever. He

contends that I should review this claim de novo because the

post-conviction court used the wrong legal standard and thus did

not decide the claim on the merits. The Warden maintains that

deference is owed to the post-conviction court’s decision. I

16 conclude that the claim was adjudicated on the merits, but that

the adjudication is not entitled to deference because the legal

standard the court used is contrary to clearly established

Supreme Court precedent.

Under AEDPA, a matter is adjudicated on the merits if the

decision was “delivered after the court . . . heard and

evaluated the evidence and the parties’ substantive arguments.”

Johnson v. Williams, 568 U.S. 289, 302 (2013) (quoting Black’s

Law Dictionary 1199 (9th ed. 2009)). In other words, there must

be “a decision finally resolving the parties’ claims, with res

judicata effect, that is based on the substance of the claim

advanced, rather than on a procedural, or other, ground.”

Yeboah-Sefah v. Ficco, 556 F.3d 53, 66 (1st Cir. 2009) (internal

quotation marks omitted). Absent any contrary indication, it is

presumed that a state court decision adjudicates a claim on the

merits. Lyons v. Brady, 666 F.3d 51, 54 (1st Cir. 2012). “A

state court does not fail to adjudicate a claim on the merits if

it assesses the petitioner’s claim but applies a legal standard

other than the standard petitioner suggests.” Jackson v.

Marshall, 864 F.3d 1, 9 (1st Cir. 2017). Rather, whether the

state court applied the correct legal standard is a question

that the federal habeas court reviews through the lens of AEDPA

deference. Id. In performing this task, I must “review[] the

17 specific reasons given by the state court and defer[] to those

reasons if they are reasonable.” Wilson, 138 S. Ct. at 1192.

Here, the post-conviction court plainly adjudicated

Kellogg-Roe’s claims on the merits. Although Kellogg-Roe styled

Claim 1 as a denial of his right to counsel, he briefed the

autonomy caselaw and argued that the trial court violated his

right to control the objectives of his defense when it denied

his request for his counsel to do nothing at trial. The post-

conviction court characterized this claim as a deprivation claim

and applied the Strickland test on the ground that “the standard

for ineffective counsel and for being deprived of any counsel at

all are . . . one in the same.” See Doc. No. 120-6 at 6. The

court’s ruling was thus a decision on the merits.

The post-conviction court’s reasoning, however, is contrary

to clearly established Supreme Court precedent. In McCoy, the

Supreme Court made clear that the Strickland standard does not

apply where “a client’s autonomy, not counsel’s competence, is

in issue.” 138 S. Ct. 1510-11. Instead, a court must decide if

the dispute concerned a tactical decision committed to counsel’s

judgment or a decision concerning the objectives of the defense

reserved strictly for the defendant. See id. at 1508. If it is

the latter, then usurping control from the defendant violates

his right of autonomy and results in a structural error

18 warranting reversal irrespective of its prejudicial effect. See

id. at 1511.

Because the post-conviction court’s reason for denying the

autonomy claim was contrary to clearly established federal law,

I review the claim de novo. See Lafler v. Cooper, 566 U.S. 156,

173 (2012) (when “state court’s adjudication was contrary to

clearly established federal law,” federal courts “can determine

the principles necessary to grant relief”). When viewed in this

way, the issue is whether a defendant’s instruction to his

counsel to refrain from challenging the prosecution’s case is a

decision concerning the objectives of the defense reserved for

the defendant, or a trial strategy decision committed to

counsel’s judgment. I conclude that it is the latter.

By pleading not guilty and opting to be tried, Kellogg-Roe

availed himself of the presumption that he was innocent until

proven guilty beyond a reasonable doubt. Effectively, he chose

to “rely[] upon the presumption of innocence as a principal

defense.” United States v. Yakobowicz, 427 F.3d 144, 150 (2d

Cir. 2005). In seeking to restrict defense counsel’s

activities, by contrast, Kellogg-Roe sought control over the

management of that defense. His directive to his counsel to do

nothing is equivalent to a series of directives on matters of

case strategy and tactics (i.e., “do not make an opening

statement,” “do not cross-examine witnesses,” “do not raise

19 evidentiary objections.”). But it is up to counsel to make such

decisions:

Trial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.”

McCoy, 138 S. Ct. at 1508 (quoting Gonzalez, 553 U.S. at 248).

By choosing to be represented by counsel, Kellogg-Roe

surrendered control to his counsel to make “‘[n]umerous choices

affecting conduct of the trial’ [that] do not require client

consent, including ‘the objections to make, the witnesses to

call, and the arguments to advance.’” Id. at 1509 (quoting

Gonzalez, 553 U.S. at 249). Directing counsel to stand mute is

plainly inconsistent with the array of decisions committed to

counsel’s independent professional judgment.

A decision to silence defense counsel is distinguishable

from the decisions that the Supreme Court has recognized as

belonging to the defendant alone. It is the defendant’s sole

prerogative to decide whether to plead guilty, waive a jury

trial, testify, forego an appeal, and admit guilt of a charged

crime. See McCoy, 138 S. Ct. at 1508; Jones, 463 U.S. at 751.

Such decisions are reserved for the defendant because they “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.” McCoy, 138 S. Ct. at 1508.

20 The Supreme Court’s application of this principle in McCoy

is instructive. McCoy was charged with the capital murder of

his estranged wife’s mother, stepfather, and son. Although

McCoy insisted that he had not killed anyone, and he testified

as much at trial, his attorney conceded over McCoy’s objection

in his opening and closing statements during the guilt phase of

the trial, and again during the trial’s penalty phase, that

McCoy had committed the murders. Id. at 1506-07. The Supreme

Court held that the choice between admitting guilt during the

guilt phase and maintaining innocence despite overwhelming

evidence of guilt concerned the objectives of the defense and

thus belonged to the defendant. See id. at 1508. Although

counsel may reasonably conclude that a concession of guilt is

the defendant’s best chance at avoiding the death penalty, the

Supreme Court explained that the defendant “may not share that

objective.” Id. He may instead “wish to avoid, above all else,

the opprobrium that comes with admitting he killed family

members,” or “he may hold life in prison not worth living and

prefer to risk death for any hope, however small, of

exoneration.” Id. The choice between asserting innocence and

conceding guilt thus is not a tactical one for counsel to make

but a decision that carries weighty personal consequences for

the defendant. See id. The Court emphasized, however, that

preserving this choice for the defendant “should not displace

21 counsel’s, or the court’s, respective trial management roles.”

Id. at 1509. Specifically, counsel is not required to employ

the assertion of innocence as a principal defense and can

instead focus on elements of the offense that, in counsel’s

professional judgment, have a better chance of success. See id.

By contrast, giving the defendant the right to bar his

counsel from defending him by insisting on a silent defense

would eviscerate the distinction the Supreme Court has drawn

between the objectives of the defense and counsel’s tactical

choices. See id. at 1508. Effectively, permitting the

defendant to invoke a silent defense would take away from

counsel the ability to make strategic decisions altogether.

Furthermore, unlike a concession of guilt, having counsel

present some defense on the defendant’s behalf instead of

standing mute does not “carr[y] grave personal consequences that

go beyond the sphere of trial tactics.” See United States v.

Read, 918 F.3d 712, 720 (9th Cir. 2019) (extending McCoy to

right to refuse insanity defense). The 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.

Because Kellogg-Roe’s autonomy claim necessarily fails, at

most, he can assert an ineffectiveness claims arising from the

denial of his request to silence his counsel. See United States

22 v. Khan, 769 F. App’x 620, 624 (10th Cir. 2019) (where defendant

failed to show that alleged error was violation of autonomy

under McCoy, considering that error under Strickland). Although

the post-conviction court applied the Strickland test based on

the clearly incorrect premise that the test applied to an

autonomy claim, it was ultimately correct in analyzing Claim 1

as an ineffectiveness claim. Further, the court’s finding that

there was neither deficient performance by counsel nor resulting

prejudice is a reasonable application of Strickland. See

Yeboah-Sefah, 556 F.3d at 70–71 (ineffectiveness claims

evaluated under § 2254(d)(1)’s “unreasonable application”

clause).

As to deficient performance, it is bizarre to suggest that

having counsel function as counsel and make independent

judgments about challenges to the prosecution’s case falls below

an objective standard of reasonableness. In fact, the Supreme

Court has recognized that there is a constructive denial of

counsel altogether when “counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing.” Cronic,

466 U.S. at 659. This total silence is precisely what Kellogg-

Roe wanted, and what the trial court prevented from occurring by

allocating control over trial management to defense counsel.

In addition, the post-conviction court aptly found that the

overwhelming evidence of Kellogg-Roe’s guilt precluded a finding

23 of prejudice. Even if defense counsel had stood silent

throughout trial, the court reasonably concluded that Kellogg-

Roe’s many confessions to the charged conduct had left no

reasonable probability that the jury would have acquitted him.

Because Claim 1 fails whether it is construed as an

autonomy claim or an ineffectiveness claim, the Warden is

entitled to summary judgment.

2. Ceding Control to Kellogg-Roe over the Decision Whether to Cross-Examine the Victim as Complete Deprivation of Counsel (Claim 2)

Whereas in Claim 1 Kellogg-Roe argued that he was not given

sufficient control over his defense, in Claim 2 he contends that

he was allowed too much control. He alleges that the trial

court completely deprived him of counsel by permitting him to

override his counsel’s decision to cross-examine the victim. As

with Claim 1, the post-conviction court based its decision to

deny the claim on the clearly incorrect premise that deprivation

claims are subject to the Strickland standard. As discussed

above, Cronic plainly holds that prejudice is presumed when

there is actual or constructive deprivation of counsel

altogether. See 466 U.S. at 658-59. Because “the specific

reasons given by the state court” for denying the claim are

contrary to clearly established Supreme Court precedent, see

Wilson, 138 S. Ct. at 1192, I review the claim de novo. See

Lafler, 566 U.S. at 173.

24 The trial court did not completely deprive Kellogg-Roe of

counsel when it honored his request to forego cross-examination

of the victim. The only potential construction for this claim

under the deprivation rubric is the first Cronic category, which

pertains to claims that counsel was “prevented from assisting

the accused during a critical stage of the proceeding.” 466

U.S. at 659 & n.25. Cross-examination of a prosecution witness

is indeed a critical stage during which a defendant is entitled

to the assistance of counsel. See Bell, 535 U.S. at 695-96.

But counsel was prevented from assisting Kellogg-Roe in this

instance at Kellogg-Roe’s own request. He cites no authority,

and I have found none, to suggest that acquiescing to a

defendant’s decision in such circumstances can form the basis

for a complete deprivation claim.

It is true, as Kellogg-Roe points out, that whether to

cross-examine a witness is among the decisions that counsel is

free to make without the defendant’s consent. See McCoy, 138 S.

Ct. at 1508; Gonzalez, 553 U.S. at 249. But it does not follow

that ceding control to a fully informed defendant 5 over a matter

of trial strategy is sufficient to maintain a complete

deprivation claim. Such allegations have been litigated as

5 Kellogg-Roe does not challenge the post-conviction court’s finding that he was fully informed as to why he should have permitted counsel to cross-examine the victim. 25 ineffectiveness claims, which further supports the notion that

they do not fit into the narrow deprivation category. See,

e.g., United States v. Masat, 896 F.2d 88, 91-93 (5th Cir.

1990); United States v. Weaver, 882 F.2d 1128, 1140 (7th Cir.

1989); Mulligan v. Kemp, 771 F.2d 1436, 1441-42 (11th Cir.

1985).

As with Claim 1, the post-conviction court evaluated the

merits of Claim 2 using the ineffectiveness standard, albeit

based on the incorrect assumption that all deprivation claims

are subject to Strickland. The court’s conclusion that the

evidence failed to establish either deficient performance by

counsel or prejudicial effect is a reasonable application of the

Strickland test.

Courts have declined to characterize counsel’s performance

as deficient where a defendant makes a fully informed decision

on trial strategy and counsel complies with the defendant’s

instruction. See, e.g., Masat, 896 F.2d at 91-93; Weaver, 882

F.2d at 1140; Mulligan, 771 F.2d at 1441-42. These rulings are

consistent with the guidance from Strickland that “[t]he

reasonableness of counsel’s actions may be determined or

substantially influenced by the defendant’s own statements or

actions.” 466 U.S. at 691. “Counsel’s actions are usually

based, quite properly, on informed strategic choices made by the

defendant and on information supplied by the defendant.” Id.

26 As for prejudice, I defer to the post-conviction court’s

reasonable finding that Kellogg-Roe failed to establish that

there would have been a reasonable doubt concerning his guilt if

the victim had been cross-examined. Even if defense counsel had

cross-examined the victim and challenged her credibility,

copious evidence against Kellogg-Roe did not depend on her

testimony, but upon his own repeated and unchallenged

confessions. The finding of no prejudice was thus based on the

court’s reasonable application of the appropriate legal test.

In sum, Kellogg-Roe has failed to establish a viable claim

arising from the trial court’s decision to honor his request for

his counsel to forego cross-examining the victim. I therefore

grant summary judgment to the Warden on Claim 2.

3. Trial Counsel’s Failure to Either Abide by the Silent Defense or Cross-Examine the Victim as Ineffective Assistance (Claim 4)

In a separate claim, Kellogg-Roe alleges that his counsel

rendered ineffective assistance when they neither honored his

request to do nothing at trial, nor vigorously defended him by

cross-examining the victim. It is undisputed that this is a

straightforward ineffectiveness claim subject to the Strickland

standard. Kellogg-Roe must therefore show that the post-

conviction court “applied Strickland to the fact of his case in

an objectively unreasonable manner.” Bell, 535 U.S. at 698-99.

This he cannot do.

27 To the extent Kellogg-Roe argues that his counsel’s

actions, either in combination or independently, resulted in

deficient performance that prejudiced his defense, the claim

must fail. The post-conviction court, having already evaluated

counsel’s actions under Strickland for Claims 1 and 2, correctly

observed that this claim presents “merely a rehashing of prior

arguments, and is without merit.” See Doc. No. 120-6 at 10.

For the reasons discussed above, the post-conviction court’s

adjudication is owed deference, and therefore, the Warden is

entitled to summary judgment on Claim 4 as well.

B. Denial of the Right to Confrontation by Precluding Counsel from Cross-Examining the Victim (Claim 3)

Kellogg-Roe contends that his Sixth Amendment right to

confront his accuser was violated when the trial court acceded

to his directive that his counsel forego cross-examining the

victim. His own decision did not amount to an effective waiver,

he claims, because (1) a represented defendant cannot waive the

right to cross-examination, only his counsel can, and (2) even

if a defendant can personally waive the right, his waiver was

not knowing because the trial court failed to inform him that he

was waiving a constitutional right. The post-conviction court

rejected both arguments on the merits, concluding that Kellogg-

Roe could personally waive his right to cross-examination and

that he did so knowingly, intelligently, and voluntarily.

28 Neither holding is contrary to, or an unreasonable application

of, clearly established federal law.

“A criminal defendant may knowingly and voluntarily waive

many of the most fundamental protections afforded by the

Constitution.” United States v. Mezzanatto, 513 U.S. 196, 201

(1995). It is well-established that the right secured by the

Confrontation Clause to confront and cross-examine adverse

witnesses is among those waivable rights. See Melendez–Diaz v.

Massachusetts, 557 U.S. 305, 313 n.3 (2009); Boykin v. Alabama,

395 U.S. 238, 243 (1969); Brookhart v. Janis, 384 U.S. 1, 4

(1966); Diaz v. United States, 223 U.S. 442, 452–53 (1912).

Waiver of the right to cross-examination can be

accomplished either by the defendant personally or by his

counsel. The defendant may personally waive his confrontation

rights by pleading guilty, Boykin, 395 U.S. at 243; by voluntary

absence at trial, Taylor v. United States, 414 U.S. 17, 18–19

(1973); and by his own misconduct or disruptive actions,

Illinois v. Allen, 397 U.S. 337, 342–43 (1970). Counsel may

also effect a waiver by stipulating, or failing to object, to

the admission of testimonial evidence or by declining to cross-

examine a witness. See Melendez–Diaz, 557 U.S. at 313 n.3

(“[t]he right to confrontation may, of course, be waived,

including by failure to object to the offending evidence”);

Gonzalez, 553 U.S. at 249-50 (“tactical decisions” through which

29 counsel may effect waiver include “the objections to make, the

witnesses to call, and the arguments to advance”); Diaz, 223

U.S. at 444, 452–53 (holding that defendant waived Confrontation

Clause objection to admission of prior testimony because his own

counsel introduced it); see also McCoy, 138 S. Ct. at 1516

(Alito, J., dissenting) (noting that whether to cross-examine

witnesses is “[a]mong the decisions that counsel is free to make

unilaterally”). 6

Although the defendant cedes control to counsel over the

decision whether to cross-examine a witness by virtue of seeking

counsel’s assistance, it does not follow that the defendant

cannot personally waive his right to cross-examination.

Certainly, Kellogg-Roe has not identified any Supreme Court

holding to this effect, and I have found none. In fact, the

Supreme Court has recognized in dictum that the decision to

waive the right to confrontation by declining to cross-examine

witnesses is one the defendant can make “in consultation with

counsel.” See Godinez v. Moran, 509 U.S. 389, 398 (1993). The

6 Every circuit court to decide the question of waiver by counsel has come to the same conclusion. See United States v. Robinson, 617 F.3d 984, 989–90 (8th Cir. 2010); United States v. Cooper, 243 F.3d 411, 418 (7th Cir. 2001); United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999); United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1999); Hawkins v. Hannigan, 185 F.3d 1146, 1155-56 (10th Cir. 1999); Wilson v. Gray, 345 F.2d 282, 286–88 (9th Cir. 1965); Cruzado v. Puerto Rico, 210 F.2d 789, 790–91 (1st Cir. 1954). 30 right, after all, belongs to the defendant, not his counsel.

See Faretta, 422 U.S. at 819 (“It is the accused, not counsel,

who must be . . . confronted with the witnesses against him[.]”)

(internal quotation marks omitted). Simply put, the fact that

waiver by counsel is permitted does not mean that waiver by the

defendant is forbidden. The two are not mutually exclusive.

As Kellogg-Roe cites no contrary authority, I cannot say

that the post-conviction court’s determination that he could

personally waive his right to cross-examination applied clearly

established federal law in an objectively unreasonable manner.

The court’s decision is, therefore, entitled to deference.

Likewise, the post-conviction court’s determination that

Kellogg-Roe had made a knowing, intelligent, and voluntary

waiver of his right to cross-examine the victim did not involve

“an unreasonable application” of clearly established federal

law. See 28 U.S.C. § 2254(d)(1); see also Yeboah-Sefah, 556

F.3d at 68 (explaining that waiver presents a “mixed question of

law and fact” reviewed under § 2254(d)(1)’s “unreasonable

application” clause). The court supportably found that the

trial judge had sufficiently explained the detriments of

foregoing the cross-examination, sought repeated affirmations

that Kellogg-Roe had carefully considered and understood the

ramifications of his decision, and accepted the waiver after

Kellogg-Roe coherently explained his rationale. Further, the

31 trial court’s colloquy was conducted after Kellogg-Roe was found

competent to stand trial, and thus he was presumably capable of

making an intelligent decision to waive his rights. See

Godinez, 509 U.S. at 399–400; Yeboah-Sefah, 556 F.3d at 69.

Kellogg-Roe protests that he was not specifically informed

that he was waiving a constitutional right. But the Supreme

Court has neither defined fact-specific constitutional minima

for a valid waiver of the right to cross-examination, nor found

a waiver insufficient in a situation analogous to Kellogg-Roe’s,

nor required a set colloquy before such a waiver can be

accepted. Cf. Cotto v. Herbert, 331 F.3d 217, 234 (2d Cir.

2003) (“[T]here is no Supreme Court caselaw definitively

establishing the circumstances sufficient, or the standard of

proof applicable, in analyzing waiver cases under the

Confrontation Clause.”). Accordingly, the post-conviction

court’s determination that the trial court’s colloquy with

Kellogg-Roe was sufficient to establish a valid waiver is

entitled to deference.

As the post-conviction court denied Claim 3 on grounds that

pass muster under AEDPA, I grant summary judgment to the Warden

on this claim.

32 C. Ineffective Assistance of Counsel During Plea Negotiations (Claim 5)

Kellogg-Roe further alleges that his trial counsel rendered

constitutionally deficient performance by failing to communicate

to him that the prosecutor had offered a plea agreement calling

for five-year sentence on the eve of trial. Following an

evidentiary hearing, the post-conviction court made a factual

finding that defense counsel had, in fact, communicated the plea

offer to Kellogg-Roe and that he had rejected it. The court

noted that one of Kellogg-Roe’s counsel had testified to this

effect, and that Kellogg-Roe had admitted to having “holes” in

his recollection of the events. See Doc. No. 1 at 22. The

court thus denied the claim because counsel did not render

deficient performance.

Kellogg-Roe has not shown that the state court’s factual

finding “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2). He merely points to the

fact that there was no notation concerning this plea offer in

either his counsel’s, or the prosecutor’s, files. But the post-

conviction court reasonably found this omission consistent with

defense counsel’s testimony that the offer had no traction, as

Kellogg-Roe rejected it out of hand and insisted on going to

33 trial. See Doc. No. 1 at 22. Thus, this habeas claim, too, is

meritless.

D. Ineffective Assistance of Appellate Counsel (Claim 6)

Finally, Kellogg-Roe contends that his appellate counsel

was constitutionally deficient because counsel presented

insufficiently developed arguments in his direct appeal to the

NHSC. The post-conviction court denied the claim on the merits,

finding neither deficient performance nor prejudice. The

court’s adjudication is not an unreasonable application of the

Strickland standard.

First, the post-conviction court’s conclusion that

appellate counsel was not deficient does not qualify as an

unreasonable application of the ineffectiveness standard.

Reasonable jurists can often disagree about whether an appellate

attorney’s legal arguments are so poorly supported as to

constitute a constitutionally deficient performance. See, e.g.,

Kelly v. Lazaroff, 846 F.3d 819, 832 (6th Cir. 2017) (holding

that appellate counsel’s “poor performance” was not deficient

under the “doubly deferential” standard established by AEDPA in

combination with Strickland); Gulliver v. Dalsheim, 739 F.2d

104, 108 (2d Cir. 1984) (although argument in appellate brief

was “not as fully or as well presented as it might have been,”

holding that it did not sink “to that level of incompetent

appellate advocacy that constitutes a violation of the Sixth

34 Amendment”); Ingram v. State, 508 N.E.2d 805, 808 (Ind. 1987)

(holding that appellate counsel did not render ineffective

assistance by drafting appellate brief “in a cursory manner”

where brief “sufficiently enabled court to reach the issues”).

Second, the post-conviction court’s determination that no

prejudice resulted from appellate counsel’s performance is

likewise entitled to deference. A defendant must show that,

absent appellate counsel’s deficient performance, there was a

reasonable probability that his appeal would have been

successful. See Smith v. Robbins, 528 U.S. 259, 285 (2000). On

de novo review of Claims 1 and 2, I rejected on the merits the

same arguments that Kellogg-Roe claims appellate counsel

insufficiently developed on direct appeal. It was reasonable,

therefore, for the post-conviction court to find that the appeal

would have been unsuccessful even if the arguments had been

better developed.

Because the post-conviction court’s denial of Claim 6 is

owed deference under AEDPA, the Warden is entitled to summary

judgment on this claim as well.

35 IV. CONCLUSION

For the foregoing reasons, I grant the Warden’s motion for

summary judgment (Doc. No. 123) on all claims. I also decline

to issue a certificate of appealability, because Kellogg-Roe has

neither (1) shown that reasonable jurists could debate whether

his petition should have been resolved in a different manner;

nor (2) shown that the issues presented were adequate to deserve

encouragement to proceed further; nor (3) otherwise made a

substantial showing of the denial of a constitutional right.

See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

483–84 (2000). The clerk of the court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

March 25, 2020

cc: Elizabeth C. Woodcock, Esq. Behzad Mirhashem, Esq.