First, does a Circuit Court retain jurisdiction to consider the merits of an appeal from an order granting federal habeas relief if a state court vacates the underlying criminal judgment and releases the petitioner from the challenged custody during the pendency of that appeal. The Ninth Circuit found that jurisdiction did exist under such circumstances. Garding, 105 F.4th at 1254. In doing so, it contradicted this Court's precedent, see e.g., Zimmerman v. Walker, 319 U.S. 744 (1943), and created a circuit split with the Sixth Circuit and Seventh Circuit, e.g. Brown v. Vanihel, 7 FAth 666, 668 (7th Cir. 2021); Eddleman v. McKee, 586 F.3d 409, 410 (6th Cir. 2009).

Second, does defense counsel render deficient performance if she fails to consult with and call an expert witness who would have proved her client's factual innocence—as happened here. Garding, 105 F.4th at 1260 (Fletcher, J., dissenting) ("This case is a miscarriage of justice. It is clear from the trial and postconviction record that Garding is innocent."). Below, a deeply divided panel held that such a failure did not run afoul of the Sixth Amendment, contrary to this Court's decision in Strickland v. Washington, 466 U.S. 668 (1984) and its progeny.

Third, is a federal habeas court required to consider all stand-alone claims for relief under 28 U.S.C. § 2254(a)—here, Garding's claim that she was convicted in violation of the Fourteenth Amendment remains undecided. The panel failed to address this issue and, as a result, created a rule contrary to Corcoran v. Levenhagen, 558 U.S. 1, 2 (2009) (per curiam).

Whether a federal appellate court retains jurisdiction to review a habeas petition when the underlying state criminal conviction has been vacated and the petitioner released from custody