Whether the Eleventh Circuit should have remanded or expanded the appeal

QUESTIONS PRESENTED 1. Whether the Eleventh Circuit should have remanded or expanded the appeal after new law and evidence developed. The Eleventh Circuit had limited the appeal to the question of trial counsel's failure to call witness Diane Busch to refute facts in the guilt and penalty phases and to establish mitigation. Hurst v. Florida, 577 U.S. __, 186 S. Ct. 616 (2016), intervened. In state court, Mr. Johnston exhausted the Hurst issue and presented expert evidence that the jury was misled contrary to Caldwell v. Mississippi, 427 U.S. 320 (1985). The Eleventh Circuit refused to remand to the district court or expand the appeal to reach the new claims. 2. Whether the Florida Supreme Court’s decision in State v. Poole,___ So.3d ___, 2020 WL 3116597 (Fla. 2020)!, undermines the rationale of the Eleventh Circuit in this case when the circuit court limited its scope of review and when it affirmed the decision of the district court. 1 Opinion initially assigned to 292 So.3d 694, Fla. Jan. 23, 2020. It was subsequently withdrawn from the bound volume and republished at ___ So.8d ___, 2020 WL 3116597, Fla., Jan. 23, 2020. Rehearing was denied and clarification granted at___ So.8d ___, 2020 WL 3116598, Fla., April 2, 2020, and assigned a designation by Westlaw as 2020 WL 1592953. However, the case designated as 2020 WL 1592953 is also designated by Westlaw as “Republished at State v. Poole, ___ So.38d _, 2020 WL 3116598, Fla., Apr. 02, 2020 (No. SC18-245),” an apparent circular reference back to the citation appearing for the rehearing and clarification. On inquiry, Thompson Reuters attorney editors advised counsel on August 19, 2020 that State v. Poole is preliminarily assigned citation 297 So.3d 487, subject to change, and will become final on Wednesday, August 26, 2020. 1