Hernandez v. Peery

1. Whether a COA should routinely be granted where the state courts and state judges have divided on the merits of the constitutional question as held by the Fifth and Seventh Circuits, several District Courts and three justices of this Court (see Jordan v. Fisher, 135 S.Ct. 2647, 2651(2015) (Sotomayor, Ginsburg, & Kagan, JJ., dissenting from denial of certiorari)), or should courts deny a COA despite the dispute among reasonable state jurists as held by the Ninth Circuit and District Court below. 2. Whether, as a threshold matter, Petitioner made a showing that reasonable jurists could debate whether his petition should have been resolved in a different manner where the California Supreme Court’s published opinion created a split with every state and lower federal court since Perry which have held that a trial court order that violates the “defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters” is structural error, reversible per se. 3. Whether the Ninth Circuit improperly looked beyond the threshold inquiry of whether a COA is merited and decide the merits without jurisdiction in contravention of this Court’s holding in Buck v. Davis, 137 S.Ct. 759 (2017), where different state court judges reached opposite conclusions on Petitioner’s constitutional claim and where all lower federal and state court authority disagrees with the California Supreme Court’s holding on this constitutional claim.