Whether a state court has adjudicated the performance prong of a Strickland v. Washington claim on the merits within the meaning of 28 U.S.C. § 2254(d) when the habeas petitioner alleges different performance deficiencies supported by new evidence that fundamentally alters the claim that was presented to the state court?

QUESTIONS PRESENTED Dale Eaton’s Wyoming appellate lawyers alleged that trial counsel was ineffective for failing to assert that Mr. Eaton was incompetent to proceed, pointing to evidence that he never participated in his defense, acted out during trial, and he suffers brain dysfunction and depression. Wyoming courts relied on a competency finding by pretrial examiner Kenneth Ash, M.D., to absolve trial counsel of any duty. Federal habeas counsel investigated and uncovered Mr. Eaton’s personal and family history of severe mental illness. When informed of this new evidence, Dr. Ash revised his diagnosis to bipolar disorder with psychosis, post trauma stress disorder, and repudiated his pretrial competency finding. Mr. Eaton’s federal petition for writ of habeas corpus alleged trial counsel was ineffective for failing to “investigate and assert” Mr. Eaton’s incompetence to proceed. Although Mr. Eaton’s federal habeas claim alleged different performance deficiencies and rested on a body of evidence that fundamentally altered the claim from the one presented in state court, the courts below ruled that the Wyoming Supreme Court adjudicated Mr. Eaton’s ineffective assistance claim on the merits, and declined to consider evidence outside the state court record, citing, Cullen v. Pinholster, 563 U.S. 170 (2010). Further, they declined to consider Mr. Eaton’s argument that his Strickland claim is a “new claim” as envisioned in Pinholster, at 186, n. 10, because the issue was more extensively briefed in Petitioner’s Reply Brief. Therefore, this case presents the following questions: 1. WHETHER A STATE COURT HAS ADJUDICATED THE PERFORMANCE PRONG OF A STRICKLAND V. WASHINGTON CLAIM ON THE MERITS WITHIN THE MEANING OF 28 U.S.C. § 2254(d) WHEN THE HABEAS PETITIONER ALLEGES DIFFERENT PERFORMANCE DEFICIENCIES SUPPORTED BY NEW EVIDENCE THAT FUNDAMENTALLY ALTERS THE CLAIM THAT WAS PRESENTED TO THE STATE COURT? 2. WHETHER 28 U.S.C. § 2254(d) (2) IS TRIGGERED BY UNFAIR STATE COURT FACT-FINDING PROCEDURES? 3. WHETHER THE APPROPRIATE STANDARD OF REVIEW FOR A FEDERAL HABEAS PETITION IS WAIVABLE BY THE PETITIONER. i