Did the jury instructions deny the defendant his constitutional right to a jury finding beyond a reasonable doubt of all facts necessary for conviction on the grounds that the instructions violated his First Amendment rights by impermissibly criminalizing speech based on its content?

QUESTIONS PRESENTED FOR REVIEW I. The jury instructions here permitted conviction for felony “stalking” based merely on the Ardell’s communications with third parties about the alleged victim, without requiring a finding that he intended that the substance of the conversations be communicated to the alleged victim or encourage harassment of her. The questions presented are: A. Did those instructions deny Ardell his constitutional right to a jury finding beyond a reasonable doubt of all facts necessary for conviction on the grounds that the instructions violated his First Amendment rights by impermissibly criminalizing speech based on its content? B. Does the fact that at least five presumably reasonable state courts have held that penalizing such third party conversations would violate the First Amendment satisfy the “substantial showing of the denial of a constitutional right” requirement under 28 U.S.C. §2253(c)(2) for a certificate of appealability authorizing Ardell to appeal the denial of his federal habeas petition raising this claim? II. Because the district court believed Ardell’s trial counsel procedurally defaulted his First Amendment/ right to a jury verdict claim in state court, depriving him of federal habeas review of that claim on its merits, Ardell presents the following pendant ii QUESTIONS PRESENTED FOR REVIEW — Continued procedural issue, see Slack v. McDaniel, 529 U.S. 473, 484 (2000): Does the state court’s procedural denial of Ardell’s constitutional claim on direct appeal bar federal habeas review where that court’s procedural holding conflicts with controlling state authority and thus was not rendered pursuant to “firmly established and regularly followed state practice” as is required for an independent and adequate state law ground sufficient to bar federal habeas review?