Kellogg-Roe v. Gerry, 112221 FED1, 20-1408

Docket Nº20-1408
Party NameZEBADIAH G. KELLOGG-ROE, Petitioner, Appellant, v. RICHARD GERRY, Warden, New Hampshire State Prison, Respondent, Appellee.
AttorneyBehzad Mirhashem, Assistant Federal Public Defender, District of New Hampshire, for appellant. Elizabeth C. Woodcock, Senior Assistant Attorney General, Criminal Justice Bureau, for appellee.
Judge PanelBefore Lynch and Barron, Circuit Judges, and Burroughs, District Judge.
Case DateNovember 22, 2021
CourtUnited States Courts of Appeals, United States Court of Appeals (1st Circuit)

ZEBADIAH G. KELLOGG-ROE, Petitioner, Appellant,


RICHARD GERRY, Warden, New Hampshire State Prison, Respondent, Appellee.

No. 20-1408

United States Court of Appeals, First Circuit

November 22, 2021


Behzad Mirhashem, Assistant Federal Public Defender, District of New Hampshire, for appellant.

Elizabeth C. Woodcock, Senior Assistant Attorney General, Criminal Justice Bureau, for appellee.

Before Lynch and Barron, Circuit Judges, and Burroughs, [*] District Judge.



Zebadiah Kellogg-Roe appeals from the United States District Court for the District of New Hampshire's denial of his petition for a writ of habeas corpus, seeking to overturn his 2010 New Hampshire conviction for aggravated felonious sexual assault of a twelve-year-old girl. Kellogg-Roe v. Warden, N.H. State Prison, No. 15-cv-116, 2020 WL 1452159, at *1 (D.N.H. April 13, 2020). Kellogg-Roe argues that denial was error because his Sixth Amendment right to autonomy to determine the objectives of his defense was violated when, despite his instructions not to present a defense at trial, his counsel took certain actions to do so. We affirm the district court's denial of the petition as it correctly rejected Kellogg-Roe's Sixth Amendment claim.


The facts in this case are drawn from the state postconviction court's decision and related documents. Kellogg-Roe v. Edmark, No. 217-2018-cv-281 (N.H. Super. Ct. Jan. 8, 2019). In reviewing federal habeas petitions, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. 2254(e); see also Jewett v. Brady, 634 F.3d 67, 70 (1st Cir. 2007). Kellogg-Roe does not challenge the correctness of the state court's factual description.

Kellogg-Roe was charged in March of 2008 in New Hampshire state court with aggravated felonious sexual assault for sexually


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


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."


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."


He argued that, as a defendant, he had a right to control the objectives of his representation. He expounded further on this claim in his reply to the respondent's motion for summary judgment, arguing that the then-recent Supreme Court case McCoy v. Louisiana, 138 S.Ct. 1500 (2018) supported his argument that the Sixth Amendment empowers defendants to direct their attorneys to mount a "silent defense." He specified that this Sixth Amendment right, based in a client's autonomy to direct the objectives of trial, was different from the...

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