Did the Ninth Circuit err for failing to grant a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) on petitioner's claim that the state trial court's failure to instruct the jury on his affirmative defense violated his right to due process under the Fourteenth Amendment because reasonable jurists would find the claim's merits debatable?

QUESTION PRESENTED This Court has repeatedly held that to receive a certificate of appealability (“COA”), a habeas petitioner need only show that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Buck v. Davis, 137 8. Ct. 759, 773 (2017). Here, Schwartz requested and was denied an instruction on an affirmative defense the trial court adjudged “colorable.” The district court denied Schwartz’s claim based in part on a factual finding that was in derogation of the trial court’s finding on the issue. The district court and the Ninth Circuit refused to grant a COA, despite the fact that the claim was not subject to 28 U.S.C. § 2254(d) and despite the fact that the affirmative defense would have completely exonerated Schwartz of criminal conduct. Did the Ninth Circuit err for failing to grant a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) on petitioner’s claim that the state trial court’s failure to instruct the jury on his affirmative defense violated his right to due process under the Fourteenth Amendment because reasonable jurists would find the claim’s merits debatable? i PARTIES AND LIST OF PRIOR PROCEEDINGS The parties to this proceeding are Petitioner Robert Deane Schwartz and Respondent Raymond Madden, Warden of Centinela State Prison in Imperial, California.! The California Attorney General Represents Respondent. Schwartz was convicted in San Bernardino County Superior Court following a jury trialin People v. Robert D. Schwartz, case no. FSB047468, Judge Kyle S. Brodie, presiding, in 2009. The California Court of Appeal affirmed Schwartz’s conviction on appeal in Robert Deane Schwartz, No. E047789, on April 9, 2010. Petitioner’s