Whether a certificate of appealability should have been issued when the jury was instructed on an invalid legal theory to convict the petitioner of first-degree murder and the prosecutor conceded uncertainty as to which theory the jury relied on

QUESTION PRESENTED Because the appellate court must issue a certificate of appealability (“COA”) when the issue is debatable among jurists of reason, should the Ninth Circuit have issued a COA when the jury was instructed on an invalid legal theory to convict Petitioner of first degree murder and the prosecutor conceded she did not know which theory the jurors relied on to convict?