I. The jury instructions here permitted conviction for
felony "stalking" based merely on the Ardell's communications with third parties about the alleged victim,
without requiring a finding that he intended that the
substance of the conversations be communicated to the
alleged victim or encourage harassment of her.

The questions presented are:

A. Did those instructions deny Ardell his
constitutional right to a jury finding beyond a reasonable doubt of all facts necessary for conviction on the grounds
that the instructions violated his First
Amendment rights by impermissibly
criminalizing speech based on its content?

B. Does the fact that at least five presumably reasonable state courts have held
that penalizing such third party conversations would violate the First Amendment satisfy the "substantial showing of
the denial of a constitutional right" requirement under 28 U.S.C. §2253(c)(2) for
a certificate of appealability authorizing
Ardell to appeal the denial of his federal
habeas petition raising this claim?

II. Because the district court believed Ardell's trial
counsel procedurally defaulted his First Amendment/
right to a jury verdict claim in state court, depriving
him of federal habeas review of that claim on its
merits, Ardell presents the following pendant
procedural issue, see Slack v. McDaniel, 529 U.S. 473,
484 (2000):
Does the state court's procedural denial of Ardell's constitutional claim on direct appeal bar
federal habeas review where that court's procedural holding conflicts with controlling
state authority and thus was not rendered
pursuant to "firmly established and regularly
followed state practice" as is required for an
independent and adequate state law ground
sufficient to bar federal habeas review?

Did the jury instructions deny the defendant his constitutional right to a jury finding beyond a reasonable doubt of all facts necessary for conviction on the grounds that the instructions violated his First Amendment rights by impermissibly criminalizing speech based on its content?