Whether trial counsel's failure to properly preserve error for appellate review constituted ineffective assistance

QUESTIONS PRESENTED FOR REVIEW The Arkansas law of justification, or self-defense, on the date of Petitioner William Gray’s offense, recognized the right of an individual to use deadly force in response to an illegal act of violence or violent felony. The accused acting in self-defense had no duty to retreat from their residence or its surrounding curtilage. At Gray’s trial on the charge of Murder in the First Degree, the trial court deleted the protection extending the curtilage provision from the mandatory instruction on the justification defense given jurors, on the State’s motion. While trial counsel objected to the deletion of the curtilage provision, he failed to preserve error for appellate review by tendering to the trial court a copy of mandatory jury instruction approved by the Arkansas Supreme Court. On direct appeal, the Arkansas Court of Appeals held that counsel procedurally defaulted the claimed error and dismissed Gray’s appeal. The following issues relating to counsel’s performance in light the Sixth Amendment right to effective assistance of counsel are raised for review: L Whether trial counsel’s failure to properly preserve error for appellate review constituted ineffective assistance where the appellate court ordered dismissal based on procedural default. II. | Whether counsel’s failure to object to the trial court’s deletion of a statutory element of Arkansas self-defense law, resulting in an impermissible lessening of the prosecution’s burden of proof in violation of due process, rendered his performance ineffective, warranting relief under the Sixth Amendment, in light of Arkansas law holding that preservation of a federal constitutional violation will not support a claim of ineffective assistance of counsel. Il. Whether the appellate court’s application of an unreasonable or inconsistent rule of procedural default to dismiss Gray’s direct appeal violated his right to appeal ensured by the Equal Protection Clause of the Fourteenth Amendment contrary to Lee v. Kemna, 534 U.S. 362 (2002). i RELATED LITIGATION 1. Gray v. State, 2018 Ark. App. 544, 564 S.W.3d 289 (2018) Opinion of the Arkansas Court of Appeals dismissing Gray’s direct appeal from his conviction for Murder in the First Degree and sentence of 55 years as a result of procedural default by trial counsel (November 7, 2018). 2. Gray v. State, No. CV-18-70, Arkansas Court of Appeals, Petition for Rehearing denied (January 9, 2018). 3. Gray v. State, No. CR-18-960, Arkansas Supreme Court, Petition for Review denied (February 21, 2019). 4. Gray v. State, FORMAL ORDER, No. 19-974 Arkansas Court of Appeals, remanding to settle record, Gray v. State, 2020 Ark. 553, 2020WL7239533, Not Published in S.W. Rptr. (December 9, 2020). 5. Gray v. State, 2021 Ark. App. 406, 636 S.W.3d 102 (2021), opinion of Arkansas Court of Appeals affirming denial of postconviction relief by Pope County [Ark.] Circuit Court (October 7, 2021). 6. Gray v. State, No. CR-19-974, Arkansas Court of Appeals, Petition for Rehearing denied (December 8, 2021). 7. Gray v. State, No. 19-974, Arkansas Supreme Court, Petition for Review denied (January 7, 2022). ii