McCarthy v. Hernandez (Habeas and Miranda)

In a per curiam decision, the Supreme Court summarily reversed the Second Circuit’s grant of federal habeas relief to Pedro Hernandez, who was convicted of kidnapping and felony murder in the 1979 disappearance and death of Etan Patz. The Second Circuit had concluded that the state trial judge should have told the jury about the rule from Missouri v. Seibert governing when a confession obtained after a delayed Miranda warning may be tainted by an earlier unwarned confession. Because the judge instead answered the jury’s question with a simple “no,” the Second Circuit found that the state courts had unreasonably applied clearly established federal law. The Supreme Court disagreed, explaining that Seibert concerns a judge’s decision whether to suppress a confession and says nothing about what juries must be instructed to consider. Because no Supreme Court precedent required the jury instruction the Second Circuit demanded, and because federal habeas courts may not overturn state convictions by extending existing precedents into new contexts, the Court held that AEDPA barred relief and reinstated Hernandez’s conviction.

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Hello. This is Jeff Barnum reading the Supreme Court decision in Kevin McCarthy, Superintendent Elmira Correctional Facility, versus Pedro Hernandez, on petition for writ of sortiory to the United States Court of Appeals for the Second Circuit, decided June 22, 2026. Procurium The Anti-Terrorism and Effective Death Penalty Act of 1996, or EDPA, imposes strict limits on federal court's power to grant habeas relief to a prisoner convicted in state court. District courts and courts of appeals have sometimes chafed under these restraints, and when they have strayed too far from the modest role that EDPA prescribes, we have summarily reversed their decisions. We must do the same today. The Second Circuit ordered habeas relief in this case, based on its holding that a state court decision was contrary to and involved an unreasonable application of Missouri v. Cybert 542 U.S. 600, a Supreme Court case from 2004, because the decision approved a trial judge's refusal to tell a jury how to apply Cybert, or more precisely, how to apply what the Second Circuit understood to be the holding in that case. But Cybert said nothing about jury instructions. For this reason and others, the Second Circuit exceeded the rule that EDPA prescribes. This case concerns a tragic event that once captured the nation's attention. On May 25, 1979, six-year-old Eden Patz left his family's apartment in Lower Manhattan to take a bus to school. Before boarding the bus, he stopped to buy a drink at a bodega, where respondent Pedro Hernandez, then 18 years old, was working. Patz never got on the bus and was never seen alive again. Despite a vigorous search, law enforcement could not locate him or find evidence of his fate. For the next 20 years, authorities investigated several suspects, but they were never prosecuted, and the case went cold. It was revived in 2012 when Hernandez's brother-in-law reported that Hernandez had made statements about his involvement in Pass's disappearance and suspected murder. At that time, Hernandez was living in southern New Jersey, and detectives took him to the Camden County, New Jersey prosecutor's office or CCPO. They began questioning him there without first administering a Miranda warning, and Hernandez, a man with low IQ and a history of mental illness, eventually confessed to strangling Pats and dumping his body in an alley behind the bodega. The detectives then read Hernandez's Miranda rights. He waived them and made a second videotaped confession. While still at the CCPO, Hernandez also confessed to his wife, Rosemary, and his daughter, Becky. Detectives drove Hernandez to the New York County District Attorney's Office, where he received another Miranda warning, waived his rights, and gave a second videotaped confession, this time to an assistant district attorney. Hernandez continued for years to confess to Patch's murder. While in pretrial custody, for example, he confessed to a psychiatrist. He also told this psychiatrist that he had confessed to the crime in 1979 at a prayer meeting and in the 1980s to his ex-wife, and he confessed the crime repeatedly to a second psychiatrist while awaiting trial. New York charged Hernandez with intentional murder, kidnapping, and felony murder. The first trial ended in a hung jury, and a second trial began in 2016. Hernandez moved to suppress his statements to the detectives and the assistant district attorney, but the trial court denied the motion. It ruled that Hernandez was not in custody at the CCPO before he received his Miranda warning, and that he had knowingly and voluntarily waived his Miranda rights at the CCPO and the District Attorney's Office before he made his later videotaped confessions. Under New York law, however, the trial court's decision not to suppress those confessions did not prevent the defense from asking the jury to disregard them. New York law requires a trial court to instruct a jury to disregard a pretrial statement if the jury finds it to have been involuntarily made. And a statement is involuntarily made within the meaning of this provision if it was obtained in violation of the defendant's state or federal constitutional rights, or the right established in Miranda. The trial court accordingly instructed the jury on voluntariness, custodial interrogation, Miranda warnings, and Miranda waiver. But New York law does not require a trial court to instruct a jury on whether an initial involuntary confession taints later confessions and thus imposes an obligation to disregard them. The trial court, therefore, did not instruct the jury to decide whether Hernandez's post-warning confessions were sufficiently attenuated from his first pre-warning confession. Nonetheless, after the jury retired to decide on a verdict, it sent the trial court a note seeking guidance on attenuation. We, the jury, request that the judge explain to us whether if we found that the confession at CCPO before the Miranda rights was not voluntary, we must disregard the two later videotape confessions at CCPO and the DA's office, the confessions to Rosemary and Becky Hernandez, and the confessions to the various doctors. The parties disagreed on the correct response. The state argued that the answer should be no, while the defense maintained that the correct answer was yes. The trial judge agreed with the state and succinctly advised the jury that the answer to its question was no. And in exchange with counsel outside the presence of the jury, the trial court explained that although New York law requires a jury to disregard confessions that it finds were involuntarily made in the sense noted above, state law does not empower a jury to assess whether a later confession is fatally tainted by an earlier involuntary confession, so the trial court did not think it proper to instruct the jury on attenuation when it was not their function to consider that issue. The jury found Hernandez guilty of kidnapping and felony murder, and the trial court sentenced him to imprisonment for 25 years to life. New York's intermediate appellate court, the appellate division first department, affirmed. It agreed with the trial court that Hernandez had not been in custody before he received the first Miranda warning, and that after receiving the warnings, he had knowingly and voluntarily waived his Miranda rights. The appellate court also ruled that the trial judge had responded to the jury note in accord with state law, and it concluded that the verdict would have been the same even if the trial court had instructed the jury on attenuation. The New York Court of Appeals denied leave to appeal, and we denied Sir Sherari. Hernandez filed an application for a writ of habeas corpus in federal district court. He argued that the appellate division had violated clearly established federal law in rejecting his Miranda arguments and in its argument on the trial court's response to the jury note. That response, Hernandez maintained, itself violated clearly established federal law by failing to explain to the jury the rule that Justice Kennedy adopted in his opinion concurring in the judgment in Missouri v. Cybert. Cybert addressed the constitutionality of an interrogation tactic under which police question a suspect in custody without providing a Miranda warning and then, after eliciting a confession, provide a Miranda warning and ask the suspect to repeat the confession. The court ruled that the use of this tactic in that case violated federal law. Writing for a forward justice plurality, Justice Hooter opined that the use of the tactic had undermined the protection that Miranda was designed to provide, and that the confession given after the tardy Miranda warning was therefore inadmissible. Justice Kennedy concurred in the judgment, arguing that a post-warning confession obtained through a deliberate two-step strategy predicated on violating Miranda is inadmissible unless law enforcement takes specific curative steps to attenuate it from the pre-warning confession. The District Court referred Hernandez's application to a magistrate judge who issued a 130-page report recommending denial. The district court adopted the report in full and denied Hernandez's habeas application. The district court saw no ground under EDPA for granting relief based on Hernandez's Miranda arguments. Yet the District Court was troubled by the trial judge's response to the jury note. The district court acknowledged that the response was technically correct. It also acknowledged that nothing in Cybert discusses how trial courts should respond to jury notes of any sort, because Cybert concerned a judge's resolution of a suppression motion, and only a court can determine admissibility. All the same, the district court ruled that Cybert was relevant to juries, not only to judges, and that Cybert required the trial court to tell the jury about attenuation in order to protect Hernandez's constitutional rights. Still, the district court, like the appellate division, concluded that the trial court's failure to explain attenuation to the jury was harmless. The district court granted a certificate of appealability on the issue of the trial court's response to the note, and a panel of the Second Circuit reversed based on Cybert. The panel stated that Justice Kennedy's opinion in Cybert set out a binding rule of federal law, and that the trial court needed to explain the rule and its consequences in its response to the jury's note. Unlike the state courts, the magistrate judge, and the district court, the panel found the trial court's no answer to be manifestly inaccurate. In the panel's view, that error warranted habeas relief under 28U United States Code, section 2254 sub-D1, because the response was contrary and involved an unreasonable application of Cybert. That was so, according to the panel, because the rule laid out in Cybert is relevant not only to a court making admissibility determinations under the Constitution, but also to juries deciding voluntariness under New York's Code of Criminal Procedure. The thrust of Cybert, the panel said, is the same in either context, and the trial court's misapplication of Cybert was so erroneous, the panel reasoned, as to deny Hernandez due process. The panel then ruled that no fair-minded jurist could conclude that the error was harmless. The panel stressed that its holding was based on the premise that the trial court had misstated or misapplied federal constitutional law in the jury instruction, not on the premise that the trial court had misstated state law. Indeed, the panel acknowledged at the outset that EdPUD does not empower federal courts to re-examine state court determinations on state law questions. The panel remanded with instructions to grant the application and to order Hernandez's release unless the state gave him a new trial. As relevant here, a federal court may grant habeas relief on a claim that a state court has resolved on the merits only if that decision was contrary to or involved an unreasonable application of clearly established federal law. Only the holdings of this court clearly establish federal law. State court determinations on state law questions are no part of a federal court's habeas review of a state conviction. EDPA instead allows a federal court to correct only extreme malfunctions in the resolution of federal issues by the criminal justice systems of the sovereign states. A decision is contrary to our holdings if it applies a rule that contradicts them, and a decision unreasonably applies our holdings when the state court blunders so badly that no fair-minded jurist could agree with it. The appellate division's decision neither contravened nor unreasonably applied any holding of this court. First, Hernandez had no federal right to have the jury evaluate the lawfulness of his confessions after the trial court admitted them. Unlike New York law, the federal constitution does not require that both judge and jury pass upon the admissibility or voluntariness of evidence when constitutional grounds are asserted for excluding it. So no federal law, much less any clearly established federal law, required the trial court to instruct the jury on the grounds for suppression set out in Miranda or Cybert. Second, the rule embraced by Justice Kennedy in Cybert does not disturb that proposition. Although we have never held that Justice Kennedy's opinion sets out the holding that courts must follow under Marx v. United States for 30 U.S. 188, a Supreme Court case from 1977, we may assume without deciding, in line with the Second Circuit's precedent, which the parties do not contest, that it does. Even if Justice Kennedy's opinion clearly established a rule of federal law recognizable under section 2254 subparagraph D, that opinion established nothing about a jury's determination of a confession's legality. Cybert concerned a trial court's ruling on a suppression motion, not a jury's assessment of attenuation. We have never applied Cybert in any other procedural context, and neither the courts below nor the parties have identified any decision of this court, holding that cybert affects a jury's consideration of a confession that a court has admitted. Third, our case law does not support the Second Circuit's conclusion that the trial judge's response to the jury's note violated Hernandez's right to due process. We have never held that the due process clause, or any other provision of the Federal Constitution, requires a trial court to explain to a jury an issue that the jury is not required to decide. Hernandez correctly declines to argue that a Cybert required the trial court to instruct the jury on attenuation in its initial charge. As Hernandez concedes, Cybert did not require the trial court to instruct the jury on attenuation in its response to the jury note either. That conclusion does not change merely because the jury focused on this question or because the legality of the confessions was an issue central to the trial. Those contingent features of Hernandez's prosecution could not, as the panel seemed to think, turn Seibert's discussion of circumstances in which a judge should suppress a confession into clearly established federal law about an issue that juries must fully consider. Hernandez counters that it is New York law, not federal law, that vests juries with the responsibility to assess attenuation, and that Seibert must control the jury's consideration of the issue for that reason. Yet the trial court ruled that New York law does not vest juries with the responsibility to assess attenuation, and the appellate division held that the trial court's response was correct under and otherwise compliant with New York law, and a federal habeas court may not second-guess state court interpretations of state law. In any event, Hernandez admits that a defendant is not entitled to a freestanding jury instruction on attenuation under New York law, and neither he nor the Second Circuit has explained how a federal court could nonetheless grant habeas relief on the premise that due process turns attenuation into a jury issue simply because the jury asks about it. The Second Circuit exceeded its authority in holding that Hernandez is entitled to relief under Section 2254 subparagraph D. The panel's opinion appears to reflect serious doubt about the reliability of Hernandez's confessions, but EdPUD does not allow a federal habeas court to disturb a state court conviction based on such an evaluation of the evidence. No clearly established federal law required the trial court to instruct the jury about the rule that justice can be adopted in Cybert, because the panel erred in holding otherwise, re grant the state's petition for a writ of surgery, reverse the judgment of the Second Circuit, and remand the case for further proceedings consistent with this opinion. It is so ordered. Justices Sotomayor, Kagan, and Jackson would deny the petition for a writ of surgery. Thank you for listening. Please help us by rating and reviewing this podcast wherever you get your podcasts, and make sure you subscribe so you can uh get all the decisions delivered directly to your device over the next few weeks in these last weeks of June. 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