Kellogg-Roe v. Gerry, 19 F.4th 21

Background

Kellogg-Roe was tried in New Hampshire for aggravated felonious sexual assault of a 12‑year‑old and convicted; he was sentenced to 40 years.
He repeatedly instructed appointed counsel to present no defense at trial (a "silent defense"); the trial judge denied that request and warned him he could represent himself with standby counsel.
At trial counsel mounted an active defense (opening, cross‑examination of six witnesses, three defense witnesses) but, at Kellogg‑Roe's request, did not cross‑examine the victim after the court confirmed he understood the risk.
Kellogg‑Roe exhausted state remedies; state court rejected his claim applying the Strickland ineffective‑assistance standard and denied relief on other claims; the New Hampshire Supreme Court declined review.
The federal district court found the state court applied the wrong standard (Strickland instead of the autonomy standard from McCoy), reviewed de novo, and held that counsel’s presentation of an active defense did not implicate the Sixth Amendment autonomy recognized in McCoy; it denied habeas relief.
The First Circuit granted a COA limited to whether Kellogg‑Roe was denied the autonomy to direct the objectives of his defense and affirmed the district court's denial of habeas relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s presentation of an active defense contrary to Kellogg‑Roe’s instruction to present no defense violated Sixth Amendment autonomy	Kellogg‑Roe: McCoy protects a defendant’s right to decide defense objectives, including directing counsel to remain silent; counsel’s active defense over his instruction violated that autonomy	Warden: McCoy is limited to forced concessions of guilt; counsel’s actions did not concede guilt and were ordinary trial management decisions reserved to counsel	Court: Presentation of an active defense (opening, cross‑examination, witnesses) did not implicate McCoy autonomy and did not violate the Sixth Amendment
Whether the state court’s use of Strickland was controlling on habeas review	Kellogg‑Roe: The autonomy claim is distinct from Strickland; McCoy requires a different analysis	Warden: State court adjudication was reasonable and Strickland sufficed or alternatively the facts do not show an autonomy violation	Court: District court correctly reviewed autonomy claim de novo because McCoy displaces Strickland where autonomy, not competence, is at issue; outcome still favors Warden
Whether forgoing cross‑examination of the victim (at defendant’s request) implicated the autonomy right	Kellogg‑Roe: Opposes counsel’s active defense overall; he relied on the right to direct objectives including cross‑examination decisions	Warden: The judge expressly questioned Kellogg‑Roe and permitted counsel to forgo cross‑examination at his request; that choice was his and did not equate to a compelled concession of guilt	Court: The record shows the judge accepted Kellogg‑Roe’s request to skip cross‑examination; that did not transform other defense actions into McCoy‑type concessions

Key Cases Cited

McCoy v. Louisiana, 138 S. Ct. 1500 (2018) (defendant’s autonomy to refuse counsel’s concession of guilt at trial)
Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
Faretta v. California, 422 U.S. 806 (1975) (right to self‑representation and limits on counsel’s control of overall objectives)
Jones v. Barnes, 463 U.S. 745 (1983) (distinguishing client‑reserved decisions from counsel’s strategic choices)
Gonzalez v. United States, 553 U.S. 242 (2008) (examples of trial management decisions for counsel)
United States v. Read, 918 F.3d 712 (9th Cir. 2019) (discussing McCoy’s application to insanity defenses)
United States v. Roof, 10 F.4th 314 (4th Cir. 2021) (discussing limits of McCoy in mitigation/mental‑health contexts)