Whether the Fifth Circuit improperly addressed the merits of the habeas claims

QUESTIONS PRESENTED The Fifth Circuit denied petitioner Howard Guidry’s certificate of appealability. In so doing, the Fifth Circuit ignored blatant racial discrimination during jury selection. The Fifth Circuit also refused to hear Guidry’s ineffective assistance of counsel claims based on the finding that they were procedurally defaulted. Neither the State nor the courts below deny that the trial court admitted testimony that violated Guidry’s confrontation rights, and that Guidry’s appellate counsel failed to appeal the issue. Further, neither the State nor the courts below dispute that Guidry’s trial counsel were deficient for allowing testimony that Guidry confessed, and for failing to investigate exculpatory evidence. Guidry has shown that the exculpatory evidence, either suppressed by the State or overlooked by trial counsel, would have established Guidry’s innocence. On federal habeas review, the Fifth Circuit rejected these claims for one reason: Guidry’s state habeas counsel failed to assert them. No one disputes that Guidry’s state habeas counsel was grossly deficient in failing to assert these arguments, or that he has a long reputation for repeated incompetence. It is also undisputed that state habeas counsel could never have preserved Guidry’s ineffective assistance of appellate counsel claim because Texas law required him to file Guidry’s state habeas petition nine months before the Texas Court of Criminal Appeals decided Guidry’s direct appeal. This case gives rise to the following questions: 1. Whether the Fifth Circuit, in this appeal of the denial of a certificate of appealability, improperly addressed the merits of the habeas claims rather than i determining whether “jurists of reason could disagree with the district court’s resolution of [petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Buck v. Davis, 1387 8. Ct. 759, 773 (2017). 2. Whether the State’s peremptory strike of a Black juror because he belonged to the NAACP constituted unconstitutional race discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), where the State failed to offer any credible race-neutral explanation for the strike. 3. Whether Guidry’s procedural default of appellate counsel’s deficient performance is excused where Texas law required him to file his habeas petition before his direct appeal was concluded. 4. Whether the State may excuse its failure to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), by asserting—with no evidence and contrary to this Court’s and other Circuits’ holdings—that it had an “open file policy” and without establishing that the exculpatory evidence was present in any files available to defense counsel. 5. Whether trial counsel was ineffective when, during a re-trial, they failed to object to testimony on the basis that, in an earlier habeas case, the Fifth Circuit held that very testimony violated the Confrontation Clause. 6. Whether ineffective assistance of trial counsel in a first trial that prejudiced the defendant in the second trial violates the Sixth Amendment. ii 7. Whether Guidry’s procedural default is excused because habeas counsel failed to investigate and present exculpatory fingerprint and ballistic evidence supporting actual innocence. iti RELATED CASES STATEMENT e State of Texas v. Howard Paul Guidry, No. 730267, in the Criminal District Court No. 230 of Harris County, Texas, judgment entered March 21, 1997. e Guidry v. State, No. 72775, in the Court of Criminal Appeals of Texas, opinion entered December 15, 1999. e State of Texas v. Howard Paul Guidry, No. 7302670101A, in the Criminal District Court No. 230 of Harris County, Texas, judgment entered July 14, 2000. e Guidry v. State, No. WR-47, 417-01, in the Court of Criminal Appeals of Texas, opinion entered November 13, 2000. e Guidry v. Dretke, No. H-O1-CV-4140, in the United States District Court o