Kellogg-Roe v. Warden, NH State Prison
| Decision Date | 25 March 2020 |
| Docket Number | Case No. 15-cv-116-PB |
| Parties | Zebadiah Kellogg-Roe v. Warden, NH State Prison |
| Court | U.S. District Court — District of New Hampshire |
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.
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. Hepleaded 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. Hehas 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).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.
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,"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 CountySuperior Court in May 2018, asserting five of the six claims he advances in his federal habeas petition:
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.
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. Thepost-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.
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...
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