Whether a court of appeals violates the principle of party presentation and due process rights when it raises an issue sua sponte that the parties did not brief

QUESTION PRESENTED wet CAPITAL CASE*** This Court has held that appellate courts should “exercise restraint” in reaching issues that had not been raised below, as the parties “would not have anticipated [these issues] in developing their arguments on appeal.” Wood v. Milyard, 566 U.S. 463, 473 (2012). However, if a court does raise an issue sua sponte, it “must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). In this case, the Eleventh Circuit denied relief on Petitioner’s ineffective assistance of counsel claim. It concluded that the claim had been fairly presented and adjudicated on the merits in state court under 28 U.S.C. § 2254(d), even though it was uncontested that Petitioner did not develop the factual support for his claim until he was provided resources in federal habeas proceedings. In the district court, the parties did not brief § 2254(d), as it was uncontested that the factually developed claim had not been adjudicated on the merits in state court. After Petitioner requested a certificate of appealability to address issues related to the errors in the district court’s procedural resolution of the claim, the Eleventh Circuit instead ordered Petitioner to address only the underlying Sixth Amendment claim. During oral argument, the Eleventh Circuit questioned Petitioner’s counsel about § 2254(d), and counsel explained why it had not been addressed and asked for the opportunity to submit supplemental briefing if the court believed it to be applicable to the case. Nevertheless, the Eleventh Circuit found that Petitioner abandoned argument regarding § 2254 (d). The questions presented in this case are: (1) Under these circumstances, does a court of appeals violate the fundamental principles of party presentation and Petitioner’s due process rights? (2) Where an indigent state prisoner is denied resources in state court and is thus unable to develop the factual basis of the claim, can the state court adjudicate that claim “on the merits” under 28 U.S.C. § 2254(d)? 1