Whether 28 U.S.C. § 2253(c)(1), F-R.A.P. 22(b) and this Court's decisions in Miller-El v. Cockrell, 537 U.S. 322 (2003), Barefoot v. Estelle, 463 U.S. 880 (1993), and its progeny require a certificate of appealability to issue when a three-judge panel of a court of appeals is split as to whether the issue is debatable among jurists of reason

QUESTION PRESENTED Steven Bixby, a death row prisoner in South Carolina, was denied habeas review by the federal district court and the Fourth Circuit Court of Appeals because of the extraordinary failures of his initial habeas counsel, whose pleadings were simply a cut-and-paste of the arguments filed in state post-conviction review, failed entirely to address the AEDPA’s limitations on relief, and—most egregiously—omitted entirely two claims on which the South Carolina Supreme Court narrowly denied relief, by a 3-2 margin. While deriding counsel’s pleadings as “largely nonresponsive,” “conclusory,” “difficult to understand,” devoid of “original work product;” “seem[ing] to expect the Court to both make Petitioner’s arguments for them;” and “inapt,” the district court failed to correct these errors, using them instead as justification to deny relief to Mr. Bixby and to deny a certificate of appealability (COA). The Fourth Circuit followed suit, initially denying a COA. However, on rehearing, which focused solely on the question of Mr. Bixby’s entitlement to a COA, the Fourth Circuit panel split two to one, with a single judge voting to grant rehearing and implicitly to grant a COA. Despite this, rehearing and a COA was denied. This case presents the following question: Whether 28 U.S.C. § 2253(c)(1), F-R.A.P. 22(b) and this Court’s decisions in Miller-El v. Cockrell, 537 U.S. 322 (2003), Barefoot v. Estelle, 463 U.S. 880 (1993), and its progeny require a certificate of appealability to issue when a three-judge panel of a court of appeals is split as to whether the issue is debatable among jurists of reason. i