Whether Article III of the Constitution and the party presentation principle foreclose appellate court judges from relying on an argument not presented in the adversarial context that results in a mistake of law upon which the court relied to deny habeas corpus relief

QUESTION PRESENTED In this habeas corpus litigation, the petitioner asserted that, under Kimmelman v. Morrison, 477 U.S. 365 (1986), the failure to appeal from the denial of a suppression motion under the Oregon Constitution constituted ineffective assistance of counsel, During oral argument in the Ninth Circuit, the three-judge panel raised an argument for the first time based on a case not cited by either party. Although never made by the state, the panel then relied on what the petitioner asserted on rehearing was an incorrect interpretation of state law. The question presented for review is: Whether Article III of the Constitution and the party presentation principle foreclose appellate court judges from relying on an argument not presented in the adversarial context that results in a mistake of law upon which the court relied to deny habeas corpus relief. i