1. Whether fundamental fairness under the Four- teenth Amendment may be assessed in a civil trial by considering trial restrictions only in isolation when the asserted due-process violation arises from their combined effect.

2. Whether the Due Process Clause permits a State to enter judgment on a state-created civil claim when the jury instructions and special verdict define hability more narrowly than the State’s governing law.

In B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138 (2015), this Court established a uniform rule for the identity-of-issue element of federal trademark preclusion. It held categorically that the Trademark Trial and Appeal Board (TTAB) and federal district courts apply the same likelihood-of- confusion standard for registration and infringement under the Lanham Act. /d. at 154. In doing so, this Court reversed a judgment that had expressly adopted the Second Circuit’s rule that differing multifactor analyses render the two standards distinct. See 716 F.3d 1020, 1024-1025 (8th Cir. 2013) (adopting Jim Beam Brands Co. v. Beamish & Crawford, Ltd., 937 F.2d 729 (2d Cir. 1991), and Levy v. Kosher Overseers Assn of America, Inc., 104 F.3d 38 (2d Cir. 1997)).

Having settled the legal standard, B&B Hardware made identity purely factual: “[iJf a mark owner uses its mark in ways that are materially the same as the usages included in its registration application, then the TTAB 1s deciding the same likelihood-of-confusion issue as a district court in infringement litigation.” 575 U.S. at 156. Applying this test to nearly identical marks (LIANA and LIANO) on identical goods (wine), the district court found the issue identical, the other elements met, and held Peju precluded.

The Second Circuit vacated on both fronts. It revived its abrogated precedents, Jim Beam and Levy, and sua sponte created a new rule for factual identity making preclusion under B&B Hardware impossible.

The questions presented are:

1. Whether the Second Circuit’s pre-B&B

The following question is presented:

In enacting the Indian Gaming Regulatory Act of 1988, 29 U.S.C. §§ 2701, et seq. (GRA), did Congress intend to foreclose courts from granting prospective equitable relief to stop tribal casino operators from violating the letter and spirit of the Act?

2

Whether Due Process permits sentencing a defendant whose severe psychiatric decompensation, and documented manifestations of “Dissociative Identity Disorder” and “Post Traumatic Stress Disorder” prevented a “Rational and Factual Understanding of sentencing proceedings under Dusky v. United States, 362 U.S. 402 (1960). Following Pate v. Robison, and Drope v. Missouri, where substantial post-trial evidence demonstrated that Petitioner mentally deteriorated between “Conviction and “Sentencing.”

Whether Due Process and fundamental fairness are violated when the Government conditions individual liberty upon third party constitutional decisions, as a contingent plea offer was placed upon circumstances entirely outside a defendant’s control, then withdraws the offer despite the defendant’s acceptance of responsibility and willingness to plea guilty.

Whether defense counsel rendered ineffective assistance during plea negotiations and competency proceedings by failing to: adequately protect Petitioner’s Constitutional rights after severe psychological deterioration became apparent before and at sentencing. .

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— identification of the legal character and continuing consequences of the prosecution-initiated dismissals, where the defendant elected the official oral record, submitted requested jurisdictional briefing, and pursued rehearing, certification, and transfer.

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