Whether Lockhart v. Fretwell's suggestion that 'mere outcome determination' is not sufficient to establish prejudice under Strickland v. Washington is part of the 'clearly established law' governing the state court's ruling, in light of subsequent limiting decisions

QUESTIONS PRESENTED Pollini’s appellate counsel failed to raise a claim that Pollini was entitled to participate in formulating the response to an important jury question. The Kentucky Supreme Court refused to determine whether Pollini would have prevailed in his appeal had appellate counsel raised the issue, finding only that in light of recent changes to the standard of harmless error, Pollini would not prevail in the appeal it it was heard at the time of the post-conviction decision. The Sixth Circuit concluded that Pollini would have gotten a new trial had counsel raised the claim. However, ignoring the state court’s actual reasoning, the Sixth Circuit nevertheless found that Pollini could not cross the § 2254 threshold. The basis for the Sixth Circuit’s ruling was that Lockhart v. Fretwell — a case with no direct application to the instant case, and which this Court has held should be limited to its facts — made it possible for reasonable jurists to disagree about whether the outcome of the state post-conviction proceedings was incorrect. The questions presented by this Petition are: 1. Whether Lockhart v. Fretwell’s suggestion that “mere outcome determination” is not sufficient to establish prejudice under Strickland v. Washington is part of the “clearly established law” governing the state court’s ruling, in light of subsequent limiting decisions. 2. If not, whether a state court’s denial of an ineffective assistance of appellate counsel claim based on the harmless error standard in effect at the time of the post-conviction action, rather than deciding whether the result of the appeal would be different, is contrary to or an unreasonable application of Strickland v. Washington and Smith v. Robbins. -i