A certificate of appealability should issue when a claim is debatable, that is, jurists would encourage further review. This Court and the courts of appeal have held that counsel renders ineffective assistance by failing to request lesser included offense instructions that are supported by the evidence. In the wake of Shinn v. Ramiraz, 596 U.S. 366 (2022), however, such claim, which here stems from post conviction ineffective assistance, must be evaluated on the closed state court record. In this case involving a first degree murder prosecution, the state court record discloses no strategic basis for failing to request lesser-included offense instructions.

The questions presented are thus whether the evidentiary limitation imposed following Shinn can be satisfied without testimony from trial counsel when the record reveals no possible strategic reason for the omissions, and whether this question is—at least—debatable.

Question not identified.