A panel of the U.S. Court of Appeals for the Tenth Circuit recently plunged into difficult questions concerning the court’s consideration of issues that were not preserved in the district court. More specifically, the three panel judges struggled to reach agreement on whether the forfeiture/clear-error rubric applicable to unpreserved issues in ordinary cases should also apply uniformly to habeas cases.
The case was Harmon v. Sharp, — F.3d —, 2019 WL 4071870 (10th Cir. Aug. 29, 2019). In it, Harmon, a state prisoner sentenced to the death penalty in Oklahoma, filed a petition for habeas relief under 28 U.S.C. §2254 after exhausting his state court appeals and post-conviction remedies. His federal habeas petition raised various issues, including ineffective assistance by his state trial and appellate counsel. The district court denied the petition, and Harmon appealed.
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