Could reasonable jurists debate whether trial counsel's failure to request a lesser-included offense instruction as an alternative to second degree assault constituted ineffective-assistance-of-counsel under this Court's well-established Sixth-Amendment standards, where evidence of the lesser-included offense was not seriously disputed?

QUESTION PRESENTED In a single trial, the prosecution alleged three separate incidents involving a single victim, two as assault in the fourth degree and one as assault in the second degree. At trial, the defense centered around the claim that the use of fireplace tongs as a weapon, enhancing the incident to second degree assault, could not be established beyond a reasonable doubt, while not disputing that other aggressive contacts occurred during all three incidents. Nevertheless, trial counsel failed to request a lesser-included offense instruction on the second degree assault charge. The district court found that the trial attorney’s failure to request a lesser-included instruction was competent, despite counsel’s failure to recall why he did not make such a request, and not prejudicial, despite the sole contest at trial being use of a weapon. This petition seeks an order vacating the denial of a certificate of appealability under 28 U.S.C. § 2253(c) and remanding to the Ninth Circuit for review of the merits of the claim that, under Strickland v. Washington, 466 U.S. 668 (1984), the conviction for second-degree assault should be vacated for violation of the Sixth Amendment right to effective assistance of counsel. The question presented is: Could reasonable jurists debate whether trial counsel’s failure to request a lesser-included offense instruction as an alternative to second degree assault constituted ineffective assistance of counsel under this Court’s wellestablished Sixth Amendment standards, where evidence of the lesserincluded offense was not seriously disputed?