Hernandez v. Peery

Decision Date28 June 2021
Docket NumberNo. 20-6199.,20-6199.
PartiesJACOB TOWNLEY HERNANDEZ v. SUZANNE M. PEERY, WARDEN
CourtUnited States Supreme Court

JACOB TOWNLEY HERNANDEZ
v.
SUZANNE M. PEERY, WARDEN

No. 20-6199.

SUPREME COURT OF THE UNITED STATES

June 28, 2021


SOTOMAYOR, J., dissenting

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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.

I

In 2006, a group of young men shot (but did not kill)

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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, 101 Cal. Rptr. 3d 414, 422 (App. 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 (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 (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). 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."

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Id., at 431. For one, "there was no express finding or showing of . . . good cause." Ibid. For another, the order "was not carefully...

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