Cite as: 594 U. S. ____ (2021) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
JACOB TOWNLEY HERNANDEZ v. SUZANNE M.
PEERY, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 20–6199. Decided June 28, 2021
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, dissenting from the denial of certi-
orari.
Petitioner Jacob Townley Hernandez’s former codefend-
ant 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 Cir-
cuit then refused to issue a certificate of appealability
(COA). That was error. Because reasonable jurists could
debate whether the District Court should have granted ha-
beas 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)
——————
1 Like the petition for certiorari and the courts below, I refer to peti-
tioner as “Townley.”
2 HERNANDEZ v. PEERY
SOTOMAYOR, J., dissenting
Javier Lazaro. Seventeen-year-old Townley and three ac-
complices were subsequently charged with attempted mur-
der. Two of those accomplices, including Noe Flores,
pleaded to reduced charges in exchange for executing dec-
larations 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 Flo-
res’ declaration, he was “unsuccessful in moving to with-
draw 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 at-
torneys and further ordered that the statemen[t] be used
solely ‘for purposes of cross-examination.’ ” People v. Her-
nandez, 53 Cal. 4th 1095, 1101, 273 P. 3d 1113, 1115 (2012).
Townley was convicted of attempted premeditated mur-
der, with enhancements for personal use of a firearm and
infliction of great bodily harm. He was sentenced to consec-
utive 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 gov-
ernment unjustifiably interferes with attorney-client com-
munication, the result may be determined to be a violation
of a criminal defendant’s constitutional ‘right to the assis-
tance 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 un-
der this test, the challenged order exhibit[ed] fatal defects.”
Cite as: 594 U. S. ____ (2021) 3
SOTOMAYOR, J., dissenting
Id., at 431. For one, “there was no express finding or show-
ing of . . . good cause.” Ibid. For another, the order “was
not carefully tailored to serve the objective of keeping ‘pa-
perwork’ 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 constitu-
tional 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 (1989), that “ ‘a showing of prejudice
is not an essential component of a violation of the rule an-
nounced in Geders,’ ” the Court of Appeal held that reversal
was necessary regardless of whether Townley could demon-
strate prejudice. Hernandez, 101 Cal. Rptr. 3d, at 432
(quoting Perry, 488 U. S., at 278–279).
On appeal to the California Supreme Court, the State
conceded that the trial court’s order “unjustifiably inter-
fered with Townley’s access to his attorney.” Hernandez, 53
Cal. 4th, at 1102, and n. 2, 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 Flo-
res 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 “com-
parable 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 adver-
sarial testing.” Hernandez, 53 Cal. 4th, at 1106, 273 P. 3d,
at 1119 (citing United States v. Cronic, 466 U. S. 648, 659
(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 (1984),
4 HERNANDEZ v. PEERY
SOTOMAYOR, J., dissenting
“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, 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 struc-
tural 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 con-
cluded 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 Town-
ley “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.
II
A habeas petitioner may not appeal the denial of his ha-
beas 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 (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
Cite as: 594 U. S. ____ (2021) 5
SOTOMAYOR, J., dissenting
of a constitutional right.” §2253(c)(2). To make that show-
ing, 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 pre-
sented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U. S. 473, 484 (2000) (in-
ternal 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 (2003). Rather,
“[a]t the COA stage, the only question is whether” the
“claim is reasonably debatable.” Buck v. Davis, 580 U. S.
___, ___, ___ (2017) (slip op., at 13, 15).
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. The Court
acknowledged that the trial judge had “sequestered all wit-
nesses” and, “before each recess,” had “instructed the testi-
fying witness not to discuss his testimony with anyone.”
Id., at 87–88. “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. The Court thus held that the “sustained barrier
to communication between [the] defendant and his lawyer”
unconstitutionally “impinged upon [the defendant’s] right
6 HERNANDEZ v. PEERY
SOTOMAYOR, J., dissenting
to the assistance of counsel guaranteed by the Sixth
Amendment.” Id., at 91. The Court reversed the defend-
ant’s conviction. Ibid.
Later, in Perry, the Court considered “whether the Geders
rule applie[d]” to an order directing a defendant not to con-
sult with his attorney during a 15-minute recess in the mid-
dle of the defendant’s testimony. 488 U. S., at 274. The
court below had declined to reverse the defendant’s convic-
tion “because the error was not prejudicial.” Id., at 276.
Perry soundly rejected that reasoning. The Court observed
that, “consistent with . . . the fundamental importance of
the criminal defendant’s constitutional right to be repre-
sented by counsel,” Geders had “simply reversed the defend-
ant’s conviction without pausing to consider the extent of
the actual prejudice.”2 488 U. S., at 279.
Taken together, Geders and Perry require automatic re-
versal whenever a court unjustifiably denies a defendant
access to counsel during trial. Here, the State concedes that
Townley was wrongly deprived of his right to consult with
his counsel about a significant witness declaration before
and during that witness’ testimony. See Brief in Opposition
5; 2018 WL 11251904, *4. That concession is well founded,
as (save for a few exceptions not relevant here) a defend-
ant’s “right to consult with his lawyer” is “absolute” and
“unrestricted.” Perry, 488 U. S., at 281, 284. In defending
the California Supreme Court’s decision, therefore, the
State must maintain that some court-ordered interferences
with the Sixth Amendment right to counsel are constitu-
tionally tolerable if the defendant fails to demonstrate “a
reasonable probability that, but for the error, the result of
——————
2 Perry ultimately affirmed the lower court on the ground that the de-
fendant did not have “a constitutional right to confer with his attorney
during the 15-minute break in his testimony.” 488 U. S., at 280. Al-
though a defendant “has an absolute right to . . . consultation [with his
lawyer] before he begins to testify,” he has no “constitutional right to dis-
cuss that testimony while it is in process.” Id., at 281, 284.
Cite as: 594 U. S. ____ (2021) 7
SOTOMAYOR, J., dissenting
the trial would have been different.” Hernandez, 53 Cal.
4th, at 1111, 273 P. 3d., at 1122 (citing Strickland, 466
U. S., at 686–687). Reasonable jurists could conclude, how-
ever, that such an argument contravenes Geders (and, by
extension, Perry), in which the Court “simply reversed the
defendant’s conviction without pausing to consider the ex-
tent of actual prejudice.” Perry, 488 U. S., at 279. Tellingly,
neither the California Supreme Court, nor the District
Court, nor the State in its brief before this Court has cited
a single case in which a court identified an access-to-coun-
sel error but still required the defendant to demonstrate
prejudice.
In declining to apply the automatic-reversal rule adopted
in Geders and Perry, the California Supreme Court relied
heavily on Strickland v. Washington and United States v.
Cronic. But neither case can bear the weight the California
Supreme Court assigned to it. Strickland, for its part, re-
quires a showing of prejudice where the defendant raises “a
claim of ‘actual ineffectiveness’ of counsel’s assistance,” i.e.,
a case in which counsel allegedly “deprive[d] a defendant of
the right to effective assistance, simply by failing to render
‘adequate legal assistance.’ ” 466 U. S., at 683, 686. Strick-
land does not address Sixth Amendment claims based on
“state interference with counsel’s assistance,” for which
“prejudice is presumed.” Id., at 692. This Court recognized
that distinction in Perry, where it explained that Strickland
“expressly noted that direct governmental interference
with the right to counsel is a different matter” from “the
standard for measuring the quality of the lawyer’s work.”
488 U. S., at 279. Indeed, Strickland cited Geders for the
proposition that the “[g]overnment violates the right to ef-
fective assistance when it interferes in certain ways with
the ability of counsel to make independent decisions about
how to conduct the defense.” Strickland, 466 U. S., at 686
(citing Geders, 425 U. S. 80). The same is true for Cronic
(decided the same day as Strickland), which also cited
8 HERNANDEZ v. PEERY
SOTOMAYOR, J., dissenting
Geders in observing that “[t]he Court has uniformly found
constitutional error without any showing of prejudice when
counsel was . . . prevented from assisting the accused dur-
ing a critical stage of the proceeding.” Cronic, 466 U. S., at
659, n. 25.
Finally, even if no reasonable jurist would question the
California Supreme Court’s dubious assumption that
Strickland’s actual-prejudice standard applies to some sub-
set of access-to-counsel errors, they could still debate
whether the California Supreme Court reasonably placed
Townley’s case within that category. The California Su-
preme Court rejected Townley’s request for automatic re-
versal based on its determination that, because the trial
court’s order “at most prevented defense counsel from fully
discussing the anticipated testimony of a single prosecution
witness,” “the circumstances present” in Townley’s case
“are not comparable in magnitude to those in Geders.” Her-
nandez, 53 Cal. 4th, at 1108–1109, 273 P. 3d, at 1120–1121
(citing Geders, 425 U. S. 80, and Cronic, 466 U. S., at 659,
n. 25). But reasonable jurists would rightly wonder why, if
the 17-hour bar on communication at issue in Geders would
prevent an attorney from “perform[ing] the essential func-
tions of trial counsel,” Hernandez, 53 Cal. 4th, at 1109, 273
P. 3d, at 1121, a total prohibition on discussing a crucial
document at all relevant times would not do the same. Af-
ter all, although “only a small number of discrete docu-
ments were off-limits for discussion between [Townley] and
his attorney,” 2018 WL 11251904, *5, those documents per-
tained to a witness who the California Supreme Court rec-
ognized was “key to the prosecution,” Hernandez, 53 Cal.
4th, at 1109, 273 P. 3d, at 1121; see also Hernandez, 101
Cal. Rptr. 3d, at 433 (describing the witness as “signifi-
cant”).
In the end, regardless of how the Ninth Circuit would re-
solve Townley’s appeal on the merits, it is beyond question
Cite as: 594 U. S. ____ (2021) 9
SOTOMAYOR, J., dissenting
that Townley’s claim is, at minimum, “reasonably debata-
ble.” Buck, 580 U. S., at ___ (slip op., at 15). The Ninth
Circuit erred in denying Townley a COA, and this Court
should not allow that error to go uncorrected. I respectfully
dissent.