Does this Court's Sixth, Eighth and Fourteenth Amendment precedent protect a defendant's right to present mitigation when a delay occasioned by the State leads to losing that substantial mitigation at a subsequent resentencing?

QUESTIONS PRESENTED FOR REVIEW This Court is familiar with Mr. Deck, having reversed his second death sentences due to state action that occurred over Mr. Deck’s objection. Three years after this Court’s actions, a third capital resentencing finally occurred, delayed again largely by state action. The District Court properly found the 12-year delay from the crime to the third resentencing to be attributable to Missouri, and Mr. Deck to have suffered prejudice due to losing “substantial mitigation” (as described by the Missouri Supreme Court in the first reversal), primarily in the form of evidence of a traumatic childhood of abuse and neglect. The Eighth Circuit reversed. This petition thus raises the following question: 1. Does this Court’s Sixth, Eighth and Fourteenth Amendment precedent protect a defendant’s right to present mitigation when a delay occasioned by the State leads to losing that substantial mitigation at a subsequent resentencing? Post-conviction counsel failed to raise the readily apparent issue of trial counsel’s lack of objection to the death penalty after the long delay. The District Court, without an evidentiary hearing, found postconviction counsel ineffective under the Strickland standard, applying Martinez v. Ryan, 566 U.S. 1 (2012). In conflict with other Circuits, the Eighth Circuit reversed applying an appellate standard, as opposed to a trial counsel standard, to measure ineffectiveness of post-conviction counsel, and denied an evidentiary hearing on the Martinez question. This raises these questions: 2. What is the proper standard to employ, that of trial counsel or appellate counsel, when addressing a post-conviction trial level omission under Martinez? 3. Similar to Shinn v. Ramirez, No. 20-1009 2021 WL 1951793 (Cert. granted May 17, 2021), when is an evidentiary hearing required to address the question of the substantiality of the claim? i