When a petitioner supplements his Constitutional claim on appeal with a colorable showing of factual innocence that was not raised in his habeas petition in district court, should a Court of Appeals exercise its discretion to consider the claim when an injustice would otherwise result? The Court of Appeals for the Tenth Circuit's refusal to do so under these circumstances in this case is in conflict with this Court's decision in Hormel v. Helwering, 312 U.S. 552, 556, 551 (1941).

When instructions to the jury are incomplete because of trial counsel's ineffectiveness, can the error be subjected to a harmless error review when it affected defendant's substantial rights? The holding of the Court of Appeals for the Tenth Circuit does not can be in conflict with the decision of the Sixth and Ninth Circuit Courts of Appeals in U.S. v. Monger, 185 F.3d 574, 578 (6th Cir. 1999), and U.S. v. Alecahin, 433 F.3d 1148, 1159 (9th Cir. 2006).

When a petitioner supplements his constitutional claim on appeal with a colorable showing of factual innocence, should a Court of Appeals exercise its discretion to consider the claim when an injustice would otherwise result?