Supreme Court of the United States · Official docket →
Kevin McCarthy, Superintendent, Elmira Correctional Facility v. Pedro Hernandez
Paid petition · United States Court of Appeals for the Second Circuit, No. 24-1816 · judgment July 21, 2025
Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.
Questions presented
The Antiterrorism and Effective Death Penalty Act (AEDPA) prohibits federal courts from invalidating a state conviction unless there is both a legal error violating clearly established federal law from this Court and a determination of prejudice that defers to state-court findings of harmless error. In this case, the U.S. Court of Appeals for the Second Circuit nullified a New York jury verdict convicting respondent Pedro Hernandez of the infamous 1979 kidnapping and murder of Etan Patz, based solely on the state trial judge’s purported failure to instruct the jury in accordance with Justice Kennedy’s controlling concurrence in Missouri v. Seibert, 542 U.S. 600 (2004). The questions presented are:
-
Did the Second Circuit violate AEDPA by finding a state jury instruction invalid under Seibert, when this Court has never held that Seibert’s rule about pretrial suppression extends to jury deliberations?
-
Did the Second Circuit violate AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant’s guilt that was unaffected by the response? (i)
Counsel of record
For petitioner
Steven Chiajon Wu
New York County District Attorney's Office
For respondent
Paul Whitfield Hughes
McDermott Will & Schulte LLP
Proceedings
- Jul 24 2026Judgment Issued.
- Jun 22 2026Petition GRANTED. Judgment REVERSED and case REMANDED for further proceedings consistent with the opinion of the Court. Opinion per curiam. (Detached Opinion) Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the petition for a writ of certiorari.
- Jun 15 2026DISTRIBUTED for Conference of 6/18/2026.
- Jun 08 2026DISTRIBUTED for Conference of 6/11/2026.
- Jun 01 2026DISTRIBUTED for Conference of 6/4/2026.
- May 26 2026DISTRIBUTED for Conference of 5/28/2026.
- May 18 2026DISTRIBUTED for Conference of 5/21/2026.
- May 11 2026DISTRIBUTED for Conference of 5/14/2026.
- Apr 27 2026DISTRIBUTED for Conference of 5/1/2026.
- Apr 20 2026DISTRIBUTED for Conference of 4/24/2026.
- Apr 16 2026Rescheduled.
- Mar 25 2026DISTRIBUTED for Conference of 4/17/2026.
- Mar 19 2026Reply of petitioner Kevin McCarthy filed.
- Mar 19 2026Waiver of the 14-day waiting period for the distribution of the petition pursuant to Rule 15.5 filed by petitioner.
- Mar 09 2026Brief of respondent Pedro Hernandez in opposition filed.
- Feb 20 2026Motion to extend the time to file a response is granted and the time is further extended to and including March 9, 2026.
- Feb 17 2026Motion to extend the time to file a response from February 23, 2026 to March 9, 2026, submitted to The Clerk.
- Jan 14 2026Motion to extend the time to file a response is granted and the time is extended to and including February 23, 2026.
- Jan 12 2026Motion to extend the time to file a response from January 22, 2026 to February 23, 2026, submitted to The Clerk.
- Dec 18 2025Petition for a writ of certiorari filed. (Response due January 22, 2026)
- Oct 15 2025Application (25A432) granted by Justice Sotomayor extending the time to file until December 18, 2025.
- Oct 08 2025Application (25A432) to extend the time to file a petition for a writ of certiorari from October 19, 2025 to December 18, 2025, submitted to Justice Sotomayor.