Whether a trial court's unjustified gag order prohibiting defense counsel from discussing a critical witness's declaration with the defendant violates the Sixth Amendment right to counsel

QUESTIONS PRESENTED Before trial began, the trial court issued a concededly unjustified gag order that prohibited defense counsel from discussing with the defendant or anyone else, the existence and contents of a declaration from the former co-defendant who became the state’s critical witness. The declaration contained the witness’s proposed testimony which was described as the state’s theory of the case. The order was never lifted, and it extended throughout trial and state appellate litigation. The state appellate court unanimously held that the trial court violated petitioner’s Sixth Amendment right to counsel and held that the error was structural error requiring reversal without a showing of prejudice pursuant to this Court’s holdings in Perry v. Leeke, 488 U.S. 272, 281, 284 (1989) and Geders v. United States, 425 U.S. 80 (1976). The State Supreme Court, however, disagreed, reversed the appellate court and affirmed the convictions. People v. Hernandez, 53 Cal.4th 1095, 273 P.3d 1113, 139 Cal.Rptr.3d 606 (2012). Despite the debate and conflicting opinions among the state courts, the District Court denied habeas relief and denied a Certificate of Appealability (“COA”) and the Ninth Circuit also denied a COA. The questions presented are: I. 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 §.Ct. 2647, 2651(2015) (Sotomayor, Ginsburg, & i 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. Il. 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. Il. 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 8.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. il