Where a state habeas court considers the merits of a defaulted counsel claim to decide whether statutorily required post-conviction counsel was ineffective for omitting the claim, may a federal habeas court ignore the antecedent ruling on federal law to find the underlying claim defaulted?

QUESTIONS PRESENTED (CAPITAL CASE) At Isaiah Tryon’s capital trial, the sole psychological expert, Dr. John Fabian, conceded on cross-examination that funding issues prevented him from performing neuroimaging to confirm the presence of brain damage. After a direct appeal that omitted all reference to trial counsel’s effectiveness, despite Oklahoma law mandating the raising of such claims at that stage, Dr. Fabian provided initial postconviction counsel an affidavit explaining he was not provided the time or funding to develop effective brain damage testimony, to perform confirmatory neuroimaging, or to conduct an Atkins evaluation, despite his recommendations that trial counsel do all of the above. However, post-conviction counsel was similarly stymied by a lack of funding and could not obtain brain scans, allowing the Oklahoma Court of Criminal Appeals (OCCA) to dismiss the initial post-conviction claim for a lack of prejudice. Though post-conviction counsel provided an affidavit from Dr. Fabian diagnosing Mr. Tryon with intellectual disability after finally performing an evaluation, the OCCA dismissed that ineffective assistance of trial counsel claim as well, reasoning that Dr. Fabian relied on the Flynn Effect, which it was precluded from considering. The court looked to the decades-old Oklahoma statute, which does not mention the Flynn Effect, as well as an eight-year-old state case discounting the Flynn Effect as lacking universal acceptance. In denying the successive post-conviction petition that finally presented neuroimaging, the OCCA reasoned that, “The real issue is whether the omitted evidence would have impacted the jury’s sentencing decision” and answered in the negative. Though the OCCA examined trial counsel’s effectiveness to determine whether post-conviction counsel had ineffectively omitted the underlying federal claim, which would have overcome the state procedural bar on successive postconviction applications, the Tenth Circuit refused to consider the OCCA’s merits adjudication, finding Mr. Tryon’s argument on that subject “conflat[es] the OCCA’s analysis of his statutory-based ineffective assistance of post-conviction counsel claim with a merits determination.” This case therefore presents the following questions: 1. Where a state habeas court, in a non-alternative holding, considers the merits of a defaulted counsel claim to decide whether statutorily required post-conviction counsel was ineffective for omitting the claim, may a federal habeas court ignore the antecedent ruling on federal law to find the underlying claim defaulted? 2. Could reasonable jurists debate whether a state court may apply the state’s Atkins statute in a way precluding consideration of current clinical standards? 1