1. Whether the Eleventh Circuit should have remanded or expanded the appeal after new law and evidence developed. The Eleventh Circuit had limited the appeal to the question of trial counsel's failure to call witness Diane Busch to refute facts in the guilt and penalty phases and to establish mitigation. Hurst v. Florida, 577 U.S. ___, 136 S. Ct. 616 (2016), intervened. In state court, Mr. Johnston exhausted the Hurst issue and presented expert evidence that the jury was misled contrary to Caldwell v. Mississippi, 427 U.S. 320 (1985). The Eleventh Circuit refused to remand to the district court or expand the appeal to reach the new claims.

2. Whether the Florida Supreme Court's decision in State v. Poole, ___ So.3d ___, 2020 WL 3116597 (Fla. 2020), undermines the rationale of the Eleventh Circuit in this case when the circuit court limited its scope of review and when it affirmed the decision of the district court.

Whether the Eleventh Circuit should have remanded or expanded the appeal