Whether the Fourth Circuit defied the Supreme Court's remand instruction and circumvented 28 U.S.C. § 2254(e)(2)'s limitations on federal court authority

QUESTION PRESENTED In his 28 U.S.C. § 2254 action, Stokes raised a defaulted claim. The district court accepted evidence outside the state court record over the State’s 28 U.S.C. § 2254(e)(2) objection but ruled only that the claim remained defaulted. Stokes appealed. A divided Fourth Circuit panel excused the default, addressed the merits almost exclusively on the new evidence, and found resentencing was warranted. On May 31, 2022, this Court vacated and remanded “for further consideration” citing Shinn v. Martinez Ramirez, 596 U.S __, 142 S. Ct. 1718, 1734 (2022). On March 22, 2023, over objection, the panel reinstated its prior opinion finding that the State had forfeited the statutory limitation by not raising it in initial appellate briefing. The questions presented are: IL Did the Fourth Circuit defy this Court’s remand instruction and circumvent 28 U.S.C. § 2254(e)(2)’s limitations on federal court authority by finding forfeiture based on the State not having offered the statutory argument as an alternative ground to deny relief on the claim when the State was defending on appeal the district court’s sole finding of default? II. If forfeiture, did the Fourth Circuit err in granting relief on a defaulted claim by violating basic principles of Strickland v. Washington, 466 U.S. 668 (1984) that require reviewing courts afford deference to reasonable strategy and that the whole of the evidence be considered in a prejudice analysis? See, e.g., Wong v. Belmontes, 558 U.S. 15, 20 (2009). ii STATEMENT OF