No. 20-6199October Term 2020Decided Jun 28, 2021
Hernandez v. Peery
For now, the key question is not who ultimately wins, but whether Hernandez should be allowed to appeal the denial of his federal petition at all.
Case status
- Current stage
- Decided
- Latest event
- Decision released Jun 28, 2021
- What it's about
This case involves a state trial court order that barred defense counsel from discussing a former co-defendant’s declaration with the defendant even though the declaration laid out the prosecution’s theory of the case. The dispute is whether that restriction violated the defendant’s Sixth Amendment right to counsel and whether the Ninth Circuit wrongly refused to allow an appeal from the denial of federal habeas relief.
Question presented
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.
- Case path
United States Court of Appeals for the Ninth Circuit / Decision released Jun 28, 2021
- Area
Decided Supreme Court case
Briefing
What it's about
Hernandez says a state trial judge wrongly barred his lawyer from discussing a former co-defendant's declaration with him, even though it laid out the prosecution's theory of the case. He is asking the Supreme Court to decide whether the Ninth Circuit wrongly refused a certificate of appealability (permission to appeal) after federal relief was denied.
Vote
No argument is scheduled yet. Hernandez argues that judges have disagreed about his Sixth Amendment claim, so he should at least get a certificate of appealability; the lower courts rejected that view.
Impact
The case could affect how hard it is for state prisoners to get appellate review in federal court when judges disagree about a constitutional claim. For example, a defendant alleging a serious Sixth Amendment problem may be blocked from appealing unless courts use a more forgiving standard for a certificate of appealability.
What's next
Watch for a scheduling move from the Court, such as oral argument or another order on the petition. No decision window is available yet.
What is Hernandez asking the Supreme Court to review?
He says the Ninth Circuit wrongly denied a certificate of appealability after he claimed a trial order violated his Sixth Amendment right to counsel. He also says the court looked past that threshold issue and decided the merits too soon.
Why could this matter beyond Hernandez's case?
It could shape when state prisoners can appeal denied federal petitions when judges disagree about a constitutional question. That matters for defendants who say limits on lawyer communication undermined a fair defense.
What should court watchers look for next in Hernandez v. Peery?
Watch for an order scheduling argument or taking another step on the petition. The Court has not set a decision window yet.
Decision
What the Court decided
For now, the key question is not who ultimately wins, but whether Hernandez should be allowed to appeal the denial of his federal petition at all.
Impact
The case could affect how hard it is for state prisoners to get appellate review in federal court when judges disagree about a constitutional claim. For example, a defendant alleging a serious Sixth Amendment problem may be blocked from appealing unless courts use a more forgiving standard for a certificate of appealability.
Not official Court text.
Opinion documents
Timing
Decided June 28, 2021
The Court released its decision on June 28, 2021 without hearing oral argument.
Documents
Related cases
Grounding
- Grounding
- Primary materials plus reporting.
- Note
- Best-effort analysis: this explainer relies on a mix of primary materials and trusted secondary sources. Official filings and opinions remain authoritative.
- Checked
- Jul 2, 2026
- Method
- Methodology