1. Whether United States v. Gouveia, 467 U.S. 180 (1984) departed from the two-tier test for determining a due process violation established by United States v. Lovasco, 431 U.S. 783 (1977) and United States v. Marion, 404 U.S. 307 (1971) applicable to the States by the Fourteenth Amendment by shifting the burden of justifying delay on the defendant and requiring that the defendant show that any delay was intended by the state to gain a tactical advantage over the accused.

2. Whether depriving petitioner of a circumstantial evidence instruction that was required in every circumstantial evidence case at the time of the offense was a violation of the ex post facto clause and deprived him of due process under the Fifth Amendment and interfered with his right to trial by jury under the Sixth Amendment applicable to the states under the Fourteenth Amendment.

Whether United States v. Gouveia departed from the two-tier test for determining a due-process violation