Guerrero v. Johnson (25-1003)

Term: OT 2026
Certiorari granted: 2026-06-15
Court below: U.S. Court of Appeals for the Fifth Circuit
Argument: 2026-11-04

The case in brief

Facts

Dexter Johnson was convicted of capital murder in Texas in 2007 and sentenced to death for the 2006 kidnapping, rape, and murder of Maria Aparece. The Supreme Court had ruled in 2002, in Atkins v. Virginia, that executing people with intellectual disabilities is unconstitutional, but Johnson did not raise that claim in his first federal habeas petition (a prisoner's request that a federal court review whether he is lawfully held). In 2019, Johnson asked the federal appeals court for the Fifth Circuit for permission to file a second petition raising the claim, relying on a 2013 revision of a major psychiatric manual (DSM-5) that changed how intellectual disability is diagnosed. The Fifth Circuit allowed it, reasoning that a claim with no real chance of winning is not truly 'available,' and later refused the State's request to dismiss the petition. After the full Fifth Circuit declined to rehear the case by a 9-7 vote, the Director, the Texas official on the other side, asked the Supreme Court to review it, pointing out that other appeals courts read the law differently.

Question

Federal law lets a prisoner file a second habeas petition based on a new constitutional rule that was 'previously unavailable,' so can a prisoner use that exception for a rule he could already have raised in his earlier federal petition?

Question Presented

Whether a claim relies on a "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" when the habeas petitioner could have asserted a claim based on the rule in a prior federal habeas petition.

Our probability estimate is published after oral argument.

Case preview

Whether a state prisoner's second or successive federal habeas claim "relies on a new rule of constitutional law ... that was previously unavailable" when the Supreme Court announced the rule before his first federal habeas petition, but a claim under it allegedly had no possibility of merit until later developments such as the DSM-5.

Guerrero

The petitioner argues that, under the statute's text, whether a new rule was "previously unavailable" turns on when the Supreme Court announced it. It does not turn on whether a claim under the rule would have succeeded or whether the prisoner had the facts to win.
The petitioner argues that "previously unavailable" modifies "new rule," not "claim." The petitioner contends the Fifth Circuit therefore erred by asking whether the claim was available.
The petitioner argues that AEDPA's structure separates legal developments, handled by § 2244(b)(2)(A), from factual developments, handled by § 2244(b)(2)(B). On this view, Johnson's claim, which rests mainly on the DSM-5's publication, must satisfy the factual-predicate provision, and he cannot meet it.
The petitioner argues that the Fifth Circuit improperly read a futility exception into the statute. The petitioner contends this approach lets prisoners circumvent AEDPA's limits and renders the "new rule" requirement surplusage, because Atkins was decided and made retroactive before Johnson's crime.
The petitioner argues that Congress's strict limits on successive petitions protect finality and comity. The petitioner contends the decision below upsets the balance Congress struck.

Johnson

The respondent argues that "previously unavailable" requires a practical inquiry. In the respondent's view, a rule is available only if the person could use it for a purpose, so a rule under which a claim had no possibility of merit was unavailable.
The respondent argues that the diagnostic regime in place at his first petition treated his IQ scores as dispositive, which foreclosed an Atkins claim despite major adaptive deficits. He contends the DSM-5 changed that framework, so Atkins became usable for him only later.
The respondent argues that the Director's reading makes both "new" and "previously unavailable" turn on timing alone. He contends this wrongly merges two distinct statutory requirements.
The respondent argues that the Director concedes elsewhere that availability is a practical question when a new rule is announced during a prior habeas proceeding. He contends the same practical approach must apply here.
The respondent argues that floodgates concerns are overstated because few rules are retroactive and the no-possibility-of-merit threshold is demanding. Alternatively, he asks the Court to dismiss the writ as improvidently granted because the Director keeps changing the question.

The United States: The United States, as amicus supporting the petitioner, argues that § 2244(b)(2)(A) asks only whether the legal rule itself existed and could be invoked earlier, not whether a claim under it could have succeeded. It contends that an updated DSM is at most new evidence governed by § 2244(b)(2)(B), and that Ross v. Blake's PLRA definition of "available" does not support the Fifth Circuit's approach.

How the case got here

Dexter Johnson, sentenced to death in Texas for a 2006 capital murder, sought authorization from the Fifth Circuit in 2019 to file a successive federal habeas application raising an Atkins intellectual-disability claim based on the 2013 DSM-5. The Fifth Circuit granted authorization, relying on its In re Cathey decision, and the district court later denied the Director's motion to dismiss under 28 U.S.C. § 2244(b)(2), then certified that ruling for interlocutory appeal. The same Fifth Circuit panel affirmed, and the en banc court denied rehearing 9 to 7 over a dissent. The Director (petitioner Guerrero) contends that the circuits are divided over the meaning of 'previously unavailable' in § 2244(b)(2)(A) and seeks review.

2007-06 — Texas state trial court: Johnson convicted of capital murder and sentenced to death. State
2010-01-27 — Texas Court of Criminal Appeals: Conviction affirmed on direct appeal (2010 WL 359018). State
2010-06-30 — Texas Court of Criminal Appeals: Initial state habeas application (no Atkins claim) denied, per curiam (2010 WL 2617804). State
2013-08-19 — United States District Court for the Southern District of Texas: Decision in Johnson v. Stephens (initial federal habeas proceeding) (2013 WL 4482865)
2015 — United States Court of Appeals for the Fifth Circuit: Per curiam decision in initial federal habeas appeal rejecting argument that Atkins principles should extend to the mentally ill (617 F. App'x 293). State
2019-04-29 — Texas Court of Criminal Appeals: Successive state habeas application asserting Atkins claim dismissed as abuse of the writ, per curiam (2019 WL 1915204). State
2019-08-08 — United States Court of Appeals for the Fifth Circuit: Johnson moved for authorization to file successive federal habeas application asserting Atkins claim
Date not stated — United States Court of Appeals for the Fifth Circuit: Panel granted authorization to file second or successive habeas application, relying on In re Cathey (935 F.3d 284). Johnson
2022-10 — United States District Court: After evidentiary hearing, Director's motion to dismiss successive application under § 2244(b)(2) denied. Johnson
Date not stated — United States District Court: Order denying motion to dismiss certified for interlocutory appeal under 28 U.S.C. § 1292(b) at Director's request
2025-07-23 — United States Court of Appeals for the Fifth Circuit: Panel accepted interlocutory appeal, answered certified question, and affirmed denial of motion to dismiss (unpublished). Johnson
2026-01-12 — United States Court of Appeals for the Fifth Circuit: Rehearing en banc denied by 9-7 vote; Judge Ho dissented from denial (164 F.4th 398). Johnson
2026-02-19 — Supreme Court of the United States: Petition for certiorari filed
2026-04-24 — Supreme Court of the United States: Brief in opposition filed
2026-06-15 — Supreme Court of the United States: Certiorari granted
2026-08-06 — Supreme Court of the United States: United States files amicus brief
2026-08-11 — Supreme Court of the United States: Set for argument on Wednesday, November 4, 2026.

In the news

Justices to debate when an established rule is “previously unavailable” in prisoner habeas cases — SCOTUSblog, 2026-10-30
Supreme Court to Hear Guerrero v. Johnson Case on Inmate's Right to Challenge Death Penalty Based on Intellectual Disability — SSBCrack, 2026-10-30
Justices Will Consider Dispute Over Successive Habeas Challenges — Bloomberg Law News, 2026-06-15
Justices Take Texas Challenge Of 'Unavailable' Habeas Claim — Law360, 2026-06-15

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