Where the defendant made the undisputed claim that trial counsel failed to inform him of an affirmative defense before his right to testify was waived, was the District Court's decision to reject that IAC claim without hearing or findings wrong or debatable?

QUESTIONS PRESENTED Each of the following four pages presents one primary question regarding IAC claims that : survived Section 2255(b) screening, but were ultimately rejected by the District Court without hearing, findings, the appointment of counsel, or the granting of a COA. . ; , . Primary Question A ‘Where the defendant (convicted under Section 1512(b) of non-violent witness tampering) . made the undisputed claim that (1) trial counsel had neglected to inform him of the ‘ . affirmative defense (available under Section 1512(e)) before his right to testify was waived, and (2) but for that omission, he would have taken the stand to testify in support '_.of that defense, was the District Court's decision to reject that [AC claim without hearing or findings (after it survived Section 2255(b) screening) wrong or at least debatable : given that counsel had a duty (under Strickland) to advise the accused, and an uninformed waiver ts invalid (under Brady). . ; [Subsidiary Questions] | 4. Is the District Court required to make “findings of fact and conclusions of law" regarding : each claim that survives Section 2255(b) screening? 2. Does trial counsel's duty to advise a criminal defendant of the right to testify, and the ; benefits of doing so, include an obligation to apprise him of a viabie affirmative defense that his testimony could support? 3. When a criminal defendant is not apprised of an affirmative defense before his right to _ testify (in support of it) is waived, is that waiver invalid (under Brady), as | unintelligently made, or does harmless-error analysis (under Strickland) apply? | ‘ ii . , ; Primary Question B | ' Where trial counsel told the judge (after the close of evidence) that the "written ' communications" alleged to constitute witness tampering (under section 1512(b)) ‘ supported a theory of “truth-seeking” (under section 1512(e)), and invoked that . . ' affirmative defense (at sidebar), but then neglected to argue in support of it (in | summation), was the District Court's finding (under Section 2255) that the omission : | | was "strategic" (made without a hearing or an assessment of the unused truth-seeking | argument submitted by the movant) wrong or at least debatable given that (1) ; | invoking the affirmative defense (and allowing the jury to be instructed on it) effectively "conceded all the government had to prove, (2) failing to explain the “truth-seeking" | theory left jurors without the ability to intelligently consider it, and (3) no other real . } | defense (to the witness tampering charges) was argued or advanced? : | | | } | [Subsidiary Questions] | ‘4. Ig whether or not to advance or abandon an affirmative defense a fundamental trial decision that belongs personally to the defendant? And if so, where trial counsel : effectively concedes guilt by invoking such a defense (without consulting the defendant) : is prejudice presumed? | 2. When the District Court's finding that an omission of counsel was “strategic” is not 1 supported by the record, is its decision (denying an IAC claim under Section 2255) : y at least debatable? ; 3. Given that a theory of guilt (under 1512(b)) is nullified when the evidence also : | supports a theory of “truth-seeking" (under Section 1512(e)), is the District Court , ; required (under Section 2255(b)) to make an assessment of, and findings regarding, | the evidence supporting both theories? | : Wl . ; , Primary Question C Where a prisoner serving 40 years for non-violent witness tampering made the claim . (under Section 2255) that trial counsel deprived him of acquittals, or of a sentence at least 34 years shorter, by failing to request a lesser-included offense instruction (on i ‘witrless harassment" under Section 1512(d)), or otherwise respond, after the prosecutor | told the jury that the "written communications,” alleged to constitute witness intimidation ; . | under Section 1512(b), demonstrated guilt because they were "harass[ment]" (which is not J F cond