Question not identified.

Petitioner was seen shackled by the jury during the punishment phase of his capital murder trial and the State relied on the jury’s exposure to Petitioner in shackles to argue for a death sentence : “You saw him walk back to counsel table this morning with shackles on.” ROA.8262. In state habeas proceedings, the state court defaulted the claim on the basis that it could have been raised on direct appeal. In proceedings arising under 28 U.S.C. § 2254, Petitioner argued that his visible shackling violated his due process rights and that he could overcome any procedural default because th e state court ruling was inadequate. The feder al district court denied the claim on the merits only. Petitioner accordingly sought a c ertificate of a ppealability , arguing that reasonable jurists could debate the district court’s merits adjudication of the shackling claim. In a published opinion and over a dissent , the United States Court of Appeals for the Fifth Circuit denied a certificate of appealability based on its determination that the shackling claim was procedurally defaulted. Judge Higginson would have granted a certificate of appealability on the shackling claim. 1. Rather than assess whether reasonable jurists could debate the district court’s resolution of the claim, can a circuit court deny a certificate of appealability by assess ing in the first instance whether there exist other independent grounds on which the claim could be denied ? 2. Can a c ertificate of a ppealability be denied notwithstanding a circuit judge’s vote to grant it?