Hernandez v. Peery

Citation141 S.Ct. 2231 (Mem)
Decision Date28 June 2021
Docket NumberNo. 20-6199,20-6199
Parties Jacob Townley HERNANDEZ v. Suzanne M. PEERY, Warden
CourtUnited States Supreme Court

The petition for a writ of certiorari is denied.

Justice SOTOMAYOR, dissenting from the denial of certiorari.

Petitioner Jacob Townley Hernandez's former codefendant became a key prosecution witness at Townley's trial.1 The trial court, however, forbade Townley's attorney from speaking with his client about the existence or contents of a declaration executed by that witness. Although the State does not dispute that this order unjustifiably interfered with Townley's constitutional right to consult with his counsel, the California Supreme Court held that reversal of Townley's convictions would be appropriate only if he could demonstrate prejudice. Townley challenged that decision in federal habeas proceedings, but the District Court denied his petition. The U. S. Court of Appeals for the Ninth Circuit then refused to issue a certificate of appealability (COA). That was error. Because reasonable jurists could debate whether the District Court should have granted habeas relief on Townley's Sixth Amendment claim, the Ninth Circuit should have authorized an appeal. I would grant the petition for a writ of certiorari and summarily reverse the order of the Ninth Circuit denying a COA.


In 2006, a group of young men shot (but did not kill) Javier Lazaro. Seventeen-year-old Townley and three accomplices were subsequently charged with attempted murder. Two of those accomplices, including Noe Flores, pleaded to reduced charges in exchange for executing declarations that detailed the shooting. To protect Flores from possible retaliation, the trial court sealed the declaration and ordered that it could be opened only if the prosecution called Flores to testify.

Flores was, in fact, called to testify at Townley's trial. Although Townley's defense counsel was given copies of Flores’ declaration, he was "unsuccessful in moving to withdraw the order not to discuss the contents or existence of the document with [Townley]." People v. Hernandez, 178 Cal.App.4th 1510, 101 Cal.Rptr.3d 414, 422 (2009) (officially depublished). As a result, the trial court "prohibited counsel from sharing the statemen[t] with [Townley], investigators, or other attorneys and further ordered that the statemen[t] be used solely ‘for purposes of cross-examination.’ " People v. Hernandez , 53 Cal.4th 1095, 1101, 273 P.3d 1113, 1115, 139 Cal.Rptr.3d 606 (2012).

Townley was convicted of attempted premeditated murder, with enhancements for personal use of a firearm and infliction of great bodily harm. He was sentenced to consecutive sentences of life in prison and 25 years to life.

The California Court of Appeal reversed. Relying on this Court's decision in Geders v. United States , 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), the Court of Appeal explained that "when the government unjustifiably interferes with attorney-client communication, the result may be determined to be a violation of a criminal defendant's constitutional ‘right to the assistance of counsel.’ " Hernandez , 101 Cal.Rptr.3d, at 423 (quoting Geders , 425 U.S., at 91, 96 S.Ct. 1330 ). The court assumed that " ‘a carefully tailored, limited restriction on the defendant's right to consult counsel is permissible’ " when necessary " ‘to protect a countervailing interest,’ " such as witness safety. Hernandez , 101 Cal.Rptr.3d, at 430–431. But "[e]ven under this test, the challenged order exhibit[ed] fatal defects." Id ., at 431. For one, "there was no express finding or showing of ... good cause." Ibid. For another, the order "was not carefully tailored to serve the objective of keeping ‘paperwork’ out of the hands of prison gangs." Ibid. Instead, it "appear[ed] to have been tailored to allow the prosecution to produce trial testimony that was a surprise to Townley" and "to impede counsel's investigation of the accuracy of the declaration." Ibid. The court thus concluded that the trial court's order "unjustifiably infringed on Townley's constitutional right to the effective assistance of counsel." Id., at 432. Then, relying on this Court's "clear holding" in Perry v. Leeke , 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989), that " ‘a showing of prejudice is not an essential component of a violation of the rule announced in Geders ,’ " the Court of Appeal held that reversal was necessary regardless of whether Townley could demonstrate prejudice. Hernandez , 101 Cal.Rptr.3d, at 432 (quoting Perry , 488 U.S., at 278–279, 109 S.Ct. 594 ).

On appeal to the California Supreme Court, the State conceded that the trial court's order "unjustifiably interfered with Townley's access to his attorney." Hernandez , 53 Cal.4th, at 1102, and n. 2, 139 Cal.Rptr.3d 606, 273 P.3d, at 1116, and n. 2. The sole issue, therefore, was "whether the deprivation of [Townley's] right to consult with his attorney about the Flores declaration was structural error," i.e., an error for which no prejudice inquiry is necessary. Brief in Opposition 5. The court concluded that the deprivation was not structural error. The circumstances of Townley's case were not "comparable in magnitude to those presented in Geders ," the court reasoned, because defense counsel did not "entirely fai[l] to subject the prosecution's case to meaningful adversarial testing." Hernandez , 53 Cal.4th, at 1106, 139 Cal.Rptr.3d 606, 273 P.3d, at 1119 (citing United States v. Cronic , 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ; internal quotation marks omitted). The court thus reversed and remanded the case for the Court of Appeal to determine whether, "in accordance with the standard stated in" Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), "there is a reasonable probability that, but for the error, the result of the trial would have been different." Hernandez, 53 Cal.4th, at 1111, 139 Cal.Rptr.3d 606, 273 P.3d, at 1122. On remand, the Court of Appeal found that Townley failed to demonstrate prejudice, and it affirmed his convictions. See People v. Hernandez , 2013 WL 3939441, *1 (Cal. Ct. App., July 29, 2013).

Townley filed a pro se petition for a writ of habeas corpus in federal court under 28 U.S.C. § 2254. Because the State again "conceded error," the question before the District Court was limited to whether "the California Supreme Court's holding that [the] trial court's order was not structural error—and prejudice had to be shown—was contrary to or an unreasonable application of federal law within the meaning of 28 U.S.C. § 2254(d)(1)." 2018 WL 11251904, *4–*5 (ND Cal., Dec. 18, 2018). The District Court concluded it was not, reasoning that "[t]he Supreme Court has never held that a limited restriction ... on the matters that defense counsel could discuss with his client amounts to structural error." Id., at *5.

Townley sought permission to appeal. The Ninth Circuit denied Townley's request for a COA in a one-page order. See App. to Pet. for Cert. 2 (denying a COA because Townley "has not made a ‘substantial showing of the denial of a constitutional right’ " (quoting 28 U.S.C. § 2253(c)(2) )). Townley then petitioned for review in this Court.


A habeas petitioner may not appeal the denial of his habeas petition unless the District Court or Court of Appeals "issues a certificate of appealability." 28 U.S.C. § 2253(c)(1) ; see also Gonzalez v. Thaler , 565 U.S. 134, 143, n. 5, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a COA "may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2). To make that showing, a habeas petitioner must demonstrate "that reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted). AEDPA does not "require petitioner[s] to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus." Miller-El v. Cockrell , 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Rather, "[a]t the COA stage, the only question is whether" the "claim is reasonably debatable." Buck v. Davis , 580 U. S. ––––, ––––, ––––, 137 S.Ct. 759, 773, 774, 197 L.Ed.2d 1 (2017).

In this case, the issue confronting the Ninth Circuit was whether reasonable jurists could debate the District Court's disposition of Townley's habeas petition. That question, in turn, depends on whether reasonable jurists could argue that the California Supreme Court's decision contravened or unreasonably applied clearly established federal law. They certainly could.

This Court has decided two cases involving court-ordered interferences with attorney-client communication: Geders v. United States and Perry v. Leeke . In Geders , the Court held that a defendant's Sixth Amendment right to counsel was violated when the trial court prohibited him from speaking with his attorney during an overnight recess that interrupted his testimony. 425 U.S., at 91, 96 S.Ct. 1330. The Court acknowledged that the trial judge had "sequestered all witnesses" and, "before each recess," had "instructed the testifying witness not to discuss his testimony with anyone." Id., at 87–88, 96 S.Ct. 1330. "But the petitioner was not simply a witness; he was also the defendant," and "a defendant in a criminal case must often consult with his attorney during the trial." Id., at 88, 96 S.Ct. 1330. The Court thus held that the "sustained barrier to communication between [the] defendant and his lawyer" unconstitutionally "impinged upon [the defendant's] right to the assistance of counsel guaranteed by the Sixth Amendment." Id., at 91, 96 S.Ct. 1330. The Court reversed the defendant's conviction. Ibid.

Later, in Perry , ...

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