Whether the Sixth Amendment requires inquiry into surrounding circumstances for a constructive denial of counsel claim

QUESTIONS PRESENTED This petition raises two questions related to two distinct claims, both arising under the Sixth Amendment. First, George McFarland alleged below and in state court that the circumstances of the representation at trial, including the fact that his retained counsel slept through much of the capital trial, amounted to a constructive denial of counsel. Second, McFarland alleged below and in state court that he was denied counsel during a police lineup, which resulted in the admission of an out-of-court, stranger-eyewitness identification against him. 1. For a claim involving a sleeping lawyer, does clearly established law require an inquiry into whether “the surrounding circumstances made it so unlikely that any lawyer could provide effective assistance”? 2. In Rothgery v. Gillespie County, Tex., 554 U.S. 191 (2008), this Court corrected the Fifth Circuit’s misapplication of clearly established Sixth Amendment law about when the right to counsel attaches in a case whose facts arose in Texas. Is the Fifth Circuit continuing to invoke its gloss of prosecutorial awareness when deciding whether adversarial proceedings have begun in the face of Rothgery?