Whether petitioner's trial counsel was ineffective

QUESTIONS PRESENTED For two decades, the Fifth Circuit routinely has denied certificates of appealability (COA) to habeas petitioners with claims that are debatable among reasonable jurists. In several cases, this Court has rejected the Fifth Circuit’s COA analysis and granted relief. See, e.g., Tennard v. Dretke, 542 U.S. 274 (2004). Yet, the Fifth Circuit remains “too demanding in assessing whether reasonable jurists could debate” the denial of relief. Jordan v. Fisher, 135 S.Ct. 2647, 2651 (2015) (Sotomayor, J., dissenting from denial of certiorari, joined by Ginsburg & Kagan, JuJ.). Petitioner’s case exemplifies the Fifth Circuit’s systemic failure to apply the COA standard properly. Two judges on Texas’ highest court dissented from the denial of habeas relief. “When a state appellate court is divided on the merits of the constitutional question, issuance of a [COA] should ordinarily be routine.” Jones v. Basinger, 635 F.3d 1030, 1040 (7th Cir. 2011). Yet, a Fifth Circuit judge summarily denied a COA without analysis. Given the debatable constitutional claim and the Fifth Circuit’s practice of demanding too much in its COA determinations, the questions presented are: I. Whether petitioner’s trial counsel was ineffective at the guilt-innocence stage, in violation of the Sixth Amendment, in failing to request jury instructions on lesserincluded offenses that were strongly supported by the trial evidence and would ii QUESTIONS PRESENTED—Continued have significantly reduced petitioner’s punishment exposure, and without consulting him on the matter. Il. Whether the Fifth Circuit has ignored this Court’s directive on how to apply the COA standard of review and erred in summarily denying a COA in a singlejudge order, particularly when two judges on Texas’ highest court would have granted relief on petitioner’s constitutional claim. iii RELATED CASES e State v. Dukes, No. 10-08423, Criminal District Court of Jefferson County, Texas. Judgment entered June 15, 2011. e Dukes v. State, No. 13-11-00434-CR, Thirteenth Court of Appeals of Texas. Judgment entered July 26, 2012. e Dukes v. State, No. PD-1199-12, Texas Court of Criminal Appeals. Order entered December 19, 2012. e =Ex parte Dukes, No. 10-08423-A, Criminal District Court of Jefferson County, Texas. Order entered January 20, 2015. e =Ex parte Dukes, No. WR-81,845-01, Texas Court of Criminal Appeals. Order entered April 1, 2015. e Dukes v. Stephens, No. 1:15-CV-137, United States District Court for the Eastern District of Texas. Judgment entered September 23, 2018. e Dukes v. Davis, No. 18-40969, United States Court of Appeals for the Fifth Circuit. Order entered October 16, 2019.