What happened
The Tenth Circuit on Wednesday affirmed the denial of Kyle Quentin Sago's bid to undo his federal murder conviction, rejecting his argument that trial counsel violated his Sixth Amendment rights by conceding that the evidence supported second-degree murder while fighting a first-degree murder charge.
Sago, who was convicted of first-degree murder and related firearm and ammunition offenses after the fatal shooting of Daniel Morgan, had sought relief under 28 U.S.C. ยง 2255. A certificate of appealability initially covered whether counsel was ineffective for conceding guilt against Sago's wishes, but the panel said it would expand the inquiry to consider both McCoy structural-error and Cronic presumed-prejudice theories.
The panel held that McCoy v. Louisiana did not require automatic reversal because the record did not show that Sago contemporaneously objected to counsel's strategy, tried to replace counsel, or maintained factual innocence of the shooting. The court said Sago's later disagreement with the defense approach was not enough to transform the case into a McCoy autonomy violation.
The court also pointed to Sago's earlier attempts to plead guilty to second-degree murder and his own trial testimony admitting that he shot Morgan. Those facts, the panel said, supported the view that Sago's objective was mitigation of sentencing exposure rather than a strategy of absolute innocence, even if he now says counsel should have leaned harder into imperfect self-defense.
Nor did the panel apply United States v. Cronic's presumption of prejudice. Counsel did not concede first-degree murder, the court said, and instead challenged premeditation, requested a lesser-included second-degree murder instruction, cross-examined witnesses, presented Sago's testimony, and made opening and closing arguments that included a self-defense theory.
Because Sago failed to establish either McCoy or Cronic error, the Tenth Circuit affirmed. The panel said a Strickland ineffective-assistance analysis was outside the scope of the certificate of appealability in the case.