Amicus Curiae Brief — Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Petitioner v. Dexter Johnson

No. 25-1003

In the

Supreme Court of the United States

ERIC GUERRERO, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Petitioner,

v.

DEXTER JOHNSON,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF FOR THE STATE OF LOUISIANA

AND 22 OTHER STATES AS AMICI CURIAE

SUPPORTING PETITIONER

ELIZABETH B. MURRILL

Attorney General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

ELIZABETH L. BROWN

Assistant Solicitor General

Counsel for Amicus Curiae State of Louisiana

(additional counsel listed after signature page)

March 25, 2026

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ................................................................ 3

ARGUMENT ................................................................ 6

I.

CONSTITUTIONAL RULES PREDATING PRIOR

HABEAS PETITIONS ARE NEITHER “NEW” NOR

“PREVIOUSLY UNAVAILABLE.” ................................ 6

II. REPLACING § 2244 (B)(2)(A)’S TIMING PILLARS

WITH FREE-FLOWING NOTIONS OF A CLAIM’S

VIABILITY DISTORTS AEDPA. .............................. 10

III. STATES HAVE NO ASSURANCE OF FINALITY

UNDER THE FIFTH CIRCUIT’S APPROACH. ............. 16

CONCLUSION .......................................................... 22

ii

TABLE OF AUTHORITIES

Cases

Agofsky v. Baysore,

160 F.4th 857 (7th Cir. 2025)................................. 19

Atkins v. Virginia,

536 U.S. 304 (2002) ............................................ 4, 18

Banister v. Davis,

590 U.S. 504 (2020) .................................. 3, 9, 12, 13

Bourgeois v. Watson,

141 S. Ct. 507 (2020) .............................................. 18

Bourgeois v. Watson,

977 F.3d 620 (7th Cir. 2020) .................................. 19

Bowe v. United States,

146 S. Ct. 447 (2026) .......................................... 6, 20

Brown v. Davenport,

596 U.S. 118 (2022) ................................................ 14

Burger v. Zant,

467 U.S. 1212 (1984) .............................................. 20

Calderon v. Thompson,

523 U.S. 538 (1998) .............................. 1, 2, 3, 16, 21

Cullen v. Pinholster,

563 U.S. 170 (2010) ................................................ 14

District of Columbia v. Heller,

554 U.S. 570 (2008) ................................................ 21

Edwards v. Vannoy,

593 U.S. 255 (2021) ........................................ 2, 8, 21

Ex parte Moore,

470 S.W.3d 481 (Tex. Crim. App. 2015),

rev’d, 581 U.S. 1 (2017) .......................................... 16

Greene v. Fisher,

565 U.S. 34 (2011) .................................................. 14

iii

Griffith v. Kentucky,

479 U.S. 314 (1987) .................................................. 8

Hall v. Florida,

572 U.S. 701 (2014) .................................... 16, 17, 18

Hall v. State,

109 So. 3d 704 (Fla. 2012),

rev’d, 572 U.S. 701 (2014) ...................................... 16

In re Bowles,

935 F.3d 1210 (11th Cir. 2019) .......................... 9, 10

In re Cathey,

857 F.3d 221 (5th Cir. 2017) ...... 5, 10, 13, 17, 19, 21

In re Johnson,

935 F.3d 284 (5th Cir. 2019) ................... 4, 5, 10, 12,

15, 17, 19, 20

In re Richardson,

802 F. App’x 750 (4th Cir. 2020) ............................ 10

Johnson v. Stephens,

No. H-11-2466, 2013 WL 4482865

(S.D. Tex. Aug. 19, 2013) ....................................... 11

Lambrix v. Singletary,

520 U.S. 518 (1997) .................................................. 8

Magwood v. Patterson,

561 U.S. 320 (2010) .................................................. 9

McCleskey v. Zant,

499 U.S. 467 (1991) ...................................... 1, 12, 13

Moore v. Texas,

581 U.S. 1 (2017) .......................................... 5, 16, 17

Muñoz v. United States,

28 F.4th 973 (9th Cir. 2022)................................... 10

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) .................................................... 21

iv

Rhines v. Weber,

544 U.S. 269 (2005) ................................................ 14

Rompilla v. Beard,

545 U.S. 374 (2005) ................................................ 20

Sawyer v. Smith,

497 U.S. 227 (1990) ................................................ 11

Shea v. Louisiana,

470 U.S. 51 (1985) .................................................. 16

Shinn v. Ramirez,

596 U.S. 366 (2022) ...................................... 1, 14, 16

Shoop v. Hill,

586 U.S. 45 (2019) ........................................ 6, 14, 15

Solomon v. Harris,

467 U.S. 1211 (1984) .............................................. 20

Strickland v. Washington,

466 U.S. 668 (1984) ................................................ 20

Teague v. Lane,

489 U.S. 288 (1989) ................................ 2, 4, 5, 7, 11

Tyler v. Cain,

533 U.S. 656 (2001) .................................... 7, 8, 9, 11

Wiggins v. Smith,

539 U.S. 510 (2003) ................................................ 20

Williams v. Taylor,

529 U.S. 362 (2000) ............................................ 8, 20

Statutes

28 U.S.C. § 2244 ............................. 1, 2, 3, 4, 5, 6, 7, 8,

9, 10, 11, 12, 13, 14,

15, 17, 19, 20, 21, 22

28 U.S.C. § 2254 .................................... 7, 9, 14, 15, 16

28 U.S.C. § 2255 .................................................... 7, 20

Other Authorities

v

Am. Ass’n on Intellectual and Developmental

Disabilities, FAQ on Intellectual Disability,

https://perma.cc/J2N6-K23Z .................................. 18

Am. Psychiatric Ass’n, Diagnostic and

Statistical Manual of Mental Disorders

(5th ed. 2013) (“DSM-5”) .................................. 18, 19

Am. Psychiatric Ass’n, Diagnostic and

Statistical Manual of Mental Disorders

(5th ed., Text Revision 2022) (“DSM-5-TR”) ... 18, 19

Daniel J. Reschly et al., Mental Retardation:

Determining Eligibility for Social Security

Benefits (2002) ........................................................ 18

Deborah Brauser, APA Unveils Early Plans for the

Next DSM, Medscape (June 2, 2025),

https://perma.cc/235L-B93U .................................. 19

Dost Öngür et al., The Future of DSM: A Report

from the Structure & Dimensions Subcommittee,

Am. J. Psychiatry In Advance (Jan. 28, 2026),

https://perma.cc/2VGV-XH4A ................................ 19

1

INTEREST OF AMICI CURIAE

The States of Louisiana, Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas,

Kentucky, Mississippi, Missouri, Montana, Nebraska,

North Dakota, Ohio, Oklahoma, Pennsylvania, South

Carolina, South Dakota, Tennessee, and West Virginia respectfully submit this brief as amici curiae in

support of petitioner. 1

Every day, amici States exercise their “residuary

and inviolable sovereignty” to enact laws and punish

violators. Shinn v. Ramirez, 596 U.S. 366, 376 (2022)

(citation omitted). This power means little if federal

courts can prevent States from enforcing their laws

through eternal federal review of convictions and sentences. Calderon v. Thompson, 523 U.S. 538, 556

(1998). That is why the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) exists. To prevent

improper federal overreach, Congress imposed express, stringent limitations on a prisoner’s ability to

bring a second or successive habeas petition, replacing

“a complex and evolving body of equitable principles

informed and controlled by historical usage, statutory

developments, and judicial decisions,” McCleskey v.

Zant, 499 U.S. 467, 489 (1991), with clear text found

(among other places) in 28 U.S.C. § 2244. That statute

bars a second or successive petition with a new claim

unless, as relevant here, “the applicant shows that the

claim relies on a new rule of constitutional law, made

1 Pursuant to Rule 37.2, Louisiana timely notified all parties

of its intent to file this brief.

2

retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

§ 2244(b)(2)(A).

Regrettably, the Fifth Circuit’s decision below

harkens back to the pre-AEDPA regime. Rather than

hew to § 2244(b)(2)(A)’s text, the Fifth Circuit looked

to changing norms, new evidence, and whether various courts across the Nation have adopted petitioner’s

latest (and late-arriving) legal theory. This new approach is utterly bizarre and wrong—for under it, a

holding of this Court announced years before a prisoner committed his offense can nevertheless be a “new

rule” “previously unavailable” to the prisoner. Cf. id.

This maneuvering threatens the finality of countless criminal proceedings. A State has no assurance

that a conviction and sentence are conclusively resolved if a prisoner is free at any time to cite new developments related to old precedents that had retroactive effect when first announced. Finality “is essential

to the operation of our criminal justice system.” Edwards v. Vannoy, 593 U.S. 255, 263 (2021) (citation

omitted). “Without finality, the criminal law is deprived of much of its deterrent effect.” Teague v. Lane,

489 U.S. 288, 309 (1989) (plurality op.). And, once federal habeas relief has already been denied, “the State

is entitled to the assurance of finality.” Calderon, 523

U.S. at 556. Unsettling this expectation of finality “inflict[s] a profound injury to the ‘powerful and legitimate interest in punishing the guilty,’ an interest

shared by the State and the victims of crime alike.” Id.

(internal citation omitted). AEDPA decrees that this

profound injury cannot be inflicted upon amici States

3

when a petitioner failed to press a claim that was neither new nor unavailable at the time of his original

petition. Amici States thus have a profound interest in

the reversal of the Fifth Circuit’s contrary holding,

thereby restoring all States’ “sovereign power to punish offenders.” Id. at 558 (citation omitted).

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Since AEDPA’s enactment, the States have benefitted from statutes like 28 U.S.C. § 2244(b), which

“conserve judicial resources, reduce piecemeal litigation, and lend finality to state court judgments within

a reasonable time.” Banister v. Davis, 590 U.S. 504,

512 (2020) (cleaned up). The Fifth Circuit’s reading of

§ 2244(b)(2)(A) ignores both the statutory text and

AEDPA’s purpose in favor of judicial notions regarding when a prisoner should be able to bring his claim.

In so doing, the Fifth Circuit’s holding frustrates

States’ ability to carry out just punishment for violations of their laws. Accordingly, amici States urge the

Court to grant the petition for writ of certiorari and

reverse the Fifth Circuit’s judgment.

Under § 2244(b)(2)(A), a habeas petitioner may assert a new claim in a second or successive petition only

if the claim “relies on a new rule of constitutional law,

made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.”

These “new” and “previously unavailable” requirements establish two timing thresholds: The petitioner’s claim must rest on a constitutional (and retroactive) decision of this Court that postdates both his

direct appeal, making it “new,” and his original federal

habeas petition, making it “previously unavailable.”

4

Yet, according to the Fifth Circuit, a “new rule of

constitutional law … that was previously unavailable”

encompasses decisions announced even before a defendant’s conviction becomes final. Contra Teague,

489 U.S. at 301. On that view, all that is necessary is

that, at some time, the rule was new and made retroactive, and the petitioner identifies some post-rule development that makes his claim more viable than

when he brought his original petition.

That is how the Fifth Circuit remarkably has allowed Johnson’s new claim under Atkins v. Virginia,

536 U.S. 304 (2002), to proceed. There is no dispute

that Atkins was decided years before Johnson kidnapped, raped, and murdered Maria Aparece. Atkins

was thus not “new” or “previously unavailable” to

Johnson in any sense of the English language. And

yet, the Fifth Circuit deemed Johnson to fall within

§ 2244(b)(2)(A) on the theory that his new Atkins claim

rests on new guidelines—namely, the DSM-5 published in 2013—promulgated by the American Psychiatric Association (APA).

It is difficult to overstate how egregiously wrong

the Fifth Circuit’s decision is—not least because it

turns a statute that requires a “new” and “previously

unavailable” rule “by the Supreme Court,”

§ 2244(b)(2)(A) (emphasis added), into a statute that

asks whether nonprofit organizations have changed

their standards.

Allowing “new diagnostic guidelines,” In re Johnson, 935 F.3d 284, 293 (5th Cir. 2019), to transform

decades-old precedent into a new and previously unavailable rule makes a mockery of the well-established

meaning of a “new rule.” As this Court has explained,

5

“a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s

conviction became final.” Teague, 489 U.S. at 301 (emphasis modified). A new rule of constitutional law is

not really “new” if it predates the prisoner’s crime and

conviction. Just as once being young does not make us

forever young, so, too, a rule that was once “new” is not

forever new.

By overriding § 2244(b)(2)(A)’s plain text, the Fifth

Circuit’s reading subjects States to perpetual relitigation of convictions and sentences. So long as a rule was

once new and applied retroactively, a petitioner need

only keep his claim in his back pocket until new developments make it more viable—and then he can launch

his attack at the last minute (here, the eve of execution) when he has accumulated as much new information as possible. That makes a mockery of the

AEDPA framework, which was intended to preserve

and protect the finality of State court proceedings and

foreclose abusive prisoner litigation.

The mayhem portended by this misreading of

§ 2244(b)(2)(A) is exemplified by Atkins claims, where

constantly evolving standards issued by nonprofits inform the analysis. Moore v. Texas, 581 U.S. 1, 20

(2017). According to the Fifth Circuit, any update to

the DSM or a new theory regarding IQ scores or adaptive functioning can authorize a second or successive

petition. In re Johnson, 935 F.3d at 293; In re Cathey,

857 F.3d 221, 227–28 (5th Cir. 2017). A petitioner

therefore has every incentive to delay raising an Atkins claim. For, if he waits until the eve of execution

like Johnson did, he need not worry whether he was

intellectually disabled “based strictly on legal rules

6

that were clearly established in the decisions of this

Court” at the time of earlier state and federal habeas

proceedings. Cf. Shoop v. Hill, 586 U.S. 45, 52 (2019).

Beyond the Atkins context, the Fifth Circuit’s approach spells trouble for any conviction and sentence

where the legal landscape is unsettled. After any new

and retroactive decision from this Court holds that the

Constitution bars States from criminalizing certain

conduct, § 2244(b)(2)(A) authorizes only one new wave

of second or successive petitions in the immediate aftermath. But under the decision below, the flood of

new petitions will persist for decades as claims will be

deemed newly available based on intervening cases interpreting this Court’s decisions or discovery of new

evidence—just consider the ineffective-assistance-ofcounsel context or the Second Amendment context.

And while a State prisoner is supposed to be able to

use this maneuver only once, see § 2244(b)(1), federal

prisoners are not so bound, Bowe v. United States, 146

S. Ct. 447, 466 (2026).

AEDPA sought to end this constant relitigation

and direct affront to the finality of State proceedings.

The Fifth Circuit has instead enshrined it. This Court

should grant Texas’s petition.

ARGUMENT

I. CONSTITUTIONAL RULES PREDATING PRIOR

HABEAS PETITIONS ARE NEITHER “NEW” NOR

“PREVIOUSLY UNAVAILABLE.”

Section 2244(b) sharply cabins the claims a habeas

petitioner may bring in a second or successive petition.

7

He cannot reassert any claim presented in a prior petition. § 2244(b)(1). And for a claim not previously presented, he must show the claim either (A) “relies on a

new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that

was previously unavailable,” or (B) has a “factual

predicate” that “could not have been discovered previously through the exercise of due diligence” and, but

for the constitutional error, he would not have been

convicted. § 2244(b)(2).

Subclause (A) establishes two timing hurdles: the

rule at issue must be both (1) “new” and (2) “previously

unavailable.” § 2244(b)(2)(A); see Tyler v. Cain, 533

U.S. 656, 662 (2001) (recognizing these are independent requirements). 2 A petitioner’s claim cannot satisfy

these requirements unless it relies on a constitutional

decision of this Court that postdates both his direct

appeal and original federal habeas proceeding. So

when a petitioner’s second or successive petition asserts a new claim based on a decision of this Court that

predated his conviction, § 2244(b)(2)(A) is unavailable

to him.

Start with the well-established meaning of a “new

rule”: a rule that “was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301 (emphasis omitted); Williams v. Taylor, 529 U.S. 362, 379–80, 380 nn.11–12

2 While this Court in Tyler paraphrased the text as requiring

the “claim” to be “previously unavailable,” 533 U.S. at 662, the

structure of the clause as well as other provisions of AEDPA

make clear that “previously unavailable” modifies “rule.”

§ 2244(b)(2)(A); see also § 2254(e)(2)(A)(i); § 2255(h)(2).

8

(2000) (recognizing AEDPA codifies Teague’s definition of a “new rule”). When deciding whether a rule is

new, a court must “survey the legal landscape as of

[the date that a defendant’s conviction became final]

to determine whether the rule later announced … was

dictated by then-existing precedent.” Lambrix v. Singletary, 520 U.S. 518, 527 (1997) (emphasis omitted).

Logically, therefore, if the rule at issue was announced

before a defendant’s conviction became final, it unquestionably is not “new.”

This timing element is central to the concept of a

“new rule” “made retroactive.” Any rule announced before a defendant’s conviction becomes final automatically applies to his case. Edwards, 593 U.S. at 262 (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). For

that reason, a court does not need to ask whether a

particular decision announced a new and retroactive

rule where the defendant’s conviction postdates the

decision—the rule already automatically applies. It is

only where a petitioner’s conviction became final before an announcement of the relevant rule that the

statute requires additional analysis. In that circumstance, the court must ask whether the rule is new

and, if so, conduct a retroactivity analysis, Lambrix,

520 U.S. at 527, though for purposes of § 2244(b)(2)(A),

the inquiry is simply whether this Court has already

deemed it retroactive, Tyler, 533 U.S. at 664.

Assuming the petitioner can cross the “new rule”

and retroactivity thresholds, he must also show the

rule was “previously unavailable.” § 2244(b)(2)(A).

While the “new rule” inquiry looks to the timing of the

conviction’s finality, the “previously unavailable” inquiry looks to the timing of the original federal habeas

9

petition. AEDPA requires a prisoner to “consolidate all

of his claims in his initial application,” rather than attack his conviction piecemeal by subsequently asserting “arguments that could have been but were not

raised.” Banister, 590 U.S. at 515–16. Accordingly, the

“previously unavailable” inquiry asks whether the decision announcing the new rule (or the retroactivity of

that rule) was issued at a time that would have allowed the defendant to press his claim in his first

§ 2254 proceeding. See Magwood v. Patterson, 561

U.S. 320, 335 (2010) (referring to § 2244(b)(2)(A) as allowing a second petition based on “intervening and

retroactive case law”); In re Bowles, 935 F.3d 1210,

1219 (11th Cir. 2019).

Focusing on the timing of the rule’s announcement

makes the “previously unavailable” inquiry straightforward. If the new rule predates his original petition,

then the rule was available for the petitioner to assert.

If issued after the original petition was adjudicated,

then it was unavailable. And if issued while the original petition was pending, the question is whether he

could have amended his petition to add the claim. In

re Bowles, 935 F.3d at 1219. This simple inquiry,

moreover, makes sense given the “stringent time

limit”—i.e., 30 days—within which the courts of appeals must decide whether to authorize a second or

successive petition. Tyler, 533 U.S. at 664;

§ 2244(b)(3)(D).

In sum, unless the rule was announced after the

petitioner’s conviction became final and he could not

include a claim under the rule in his original federal

habeas petition, § 2244(b)(2)(A) does not authorize a

second or successive petition raising such a claim. In

10

re Bowles, 935 F.3d at 1218–19; In re Richardson, 802

F. App’x 750, 756–57 (4th Cir. 2020).

II. REPLACING § 2244 (b)(2)(A)’S TIMING PILLARS

WITH FREE-FLOWING NOTIONS OF A CLAIM’S

VIABILITY DISTORTS AEDPA.

The Fifth Circuit’s reading of § 2244(b)(2)(A), endorsed by the Ninth Circuit, eschews the two timing

questions for a malleable inquiry into all facts and

caselaw stemming from an allegedly new rule. See In

re Johnson, 935 F.3d at 292–94; Muñoz v. United

States, 28 F.4th 973, 977 (9th Cir. 2022) (adopting a

“pragmatic approach” based on “real-world circumstances”). Instead of asking whether the rule was

available for a petitioner to raise (either before his conviction became final or when he filed his original habeas petition), the Fifth Circuit asks whether the individual petitioner had a viable claim based on that rule

at the time of his original petition. In re Johnson, 935

F.3d at 293. This involves a wide-ranging look at various post-conviction and post-petition facts, scientific

developments, and legal decisions to determine

whether a petitioner’s claim would have had “some

possibility of merit” at the time of his original proceedings. Id. at 292–93 (quoting In re Cathey, 857 F.3d at

232). That approach is utterly bizarre and wrong.

The statutory text of § 2244(b)(2)(A) limits a second

or successive petition to one development: a “new” and

“previously unavailable” “rule of constitutional law,

made retroactive to cases on collateral review by the

Supreme Court.” Section 2244(b)(2)(A) expressly and

intentionally forecloses relief based on factual developments (which are the province of § 2244(b)(2)(B)) or

11

“the decisions of the lower court[s],” Tyler, 533 U.S. at

663. Congress drew this line because it knew that concerns about “seriously undermin[ing]” finality guide

this Court’s retroactivity analysis. See Teague, 489

U.S. at 309–10; Sawyer v. Smith, 497 U.S. 227, 242

(1990). By allowing only intervening, retroactive decisions by this Court to open the door to a second or successive petition under § 2244(b)(2)(A), Congress guaranteed new petitions could arise only after this Court

concluded the interests in applying the new rule justified the harm to the States. That special solicitude for

finality of State court proceedings cannot be unsettled

by factual developments, guidance from nonprofits,

and lower court decisions applying existing rules, yet

these changes are the foundation of the Fifth Circuit’s

misguided § 2244(b)(2)(A) analysis.

Dexter Johnson’s case illustrates the Fifth Circuit’s profound error. He wants to press a new Atkins

claim. But he kidnapped, raped, and murdered Maria

Aparece four years after this Court decided Atkins. Atkins was not new, retroactive, or previously unavailable to Johnson. He could have pressed his new Atkins

claim before his trial, on direct appeal, in state postconviction proceedings, and in earlier federal habeas

proceedings. Proving the point, Johnson’s original

state and federal postconviction petitions relied on Atkins to argue mental illness should make him ineligible for the death penalty. Johnson v. Stephens, No. H11-2466, 2013 WL 4482865, at *18–19 (S.D. Tex. Aug.

19, 2013). That he waited until the week of his execution to raise his new Atkins argument about intellectual disability betrays the gamesmanship afoot: His

delay was not due to the “previously unavailable” nature of his claim, but rather was part and parcel of his

12

serial efforts to prevent Texas from carrying out his

death sentence.

Nonetheless, the Fifth Circuit rewarded Johnson’s

gamesmanship. Notwithstanding the “obvious”—that

“Atkins was decided long before Johnson even committed his crimes”—the Fifth Circuit deemed Atkins a

new and previously unavailable rule as to Johnson. In

re Johnson, 935 F.3d at 292. In particular, the Fifth

Circuit justified that reasoning on the ground that the

APA promulgated the DSM-5 in 2013, “six years after

Johnson’s conviction” and “17 days before the denial”

of his federal habeas petition—and Johnson’s new Atkins claim is based on the DSM-5. Id. at 293. In assessing the timeliness of Johnson’s petition, the court

concluded “the publication of the DSM-5” was the “factual predicate” of Johnson’s new Atkins claim. Id. at

296. That observation should have been a red flag for

the Fifth Circuit—for the discovery of a new factual

predicate for a claim falls squarely within the second

avenue for a second or successive petition,

§ 2244(b)(2)(B). (Johnson could not successfully invoke

§ 2244(b)(2)(B) because it permits only a challenge to

a conviction, not a sentence.) Undeterred, however,

the Fifth Circuit turned the decades-old Atkins decision into a “new” and “previously unavailable” rule,

and so blessed Johnson’s end-run around AEDPA’s

carefully crafted limits on second or successive petitions.

This reeks of yesteryear. Prior to AEDPA, a court

could “hear a second or successive petition if the ‘ends

of justice’ warranted doing so,” Banister, 590 U.S. at

514 (quoting McCleskey, 499 U.S. at 485)—an openended invitation for judges to administer their notions

13

of equity by looking at whether the petition presented

a new ground for relief that was not deliberately withheld or constituted abuse-of-the-writ, McCleskey, 499

U.S. at 486–87. The abuse-of-the-writ test mirrored

the cause-and-prejudice standard for procedural default. Id. at 493. So, a petitioner needed only to show

“some objective factor external to the defense” prevented him from asserting it earlier and thereby prejudiced him. Id. at 493–94 (citation omitted). “Congress

passed AEDPA against this legal backdrop” and

“made the limits on entertaining second or successive

habeas applications more stringent than before.” Banister, 590 U.S. at 515.

The Fifth Circuit’s approach, however, functionally

revives the old cause-and-prejudice standard. Once a

petitioner points to a decision of this Court that previously established a retroactive rule of constitutional

law (see, for example, Atkins), the squishiest of inquiries becomes (1) is this a new ground for relief (of course

this one is), and (2) did some external factor reveal the

“possibility of merit” of the new claim (allegedly the

DSM-5 did) thereby excusing the petitioner’s failure to

raise the claim earlier. In re Cathey, 857 F.3d at 226,

232. That is no hurdle at all—and the Congress that

passed AEDPA likely would be shocked to see that it

accomplished nothing in § 2244(b).

To justify turning AEDPA on its head, the Fifth

Circuit has worried that surely a federal habeas petitioner need not press all possible claims from the

jump, given the perceived “fear that those claims

would be later foreclosed even in light of developments

in the law or facts.” In re Cathey, 857 F.3d at 228. Ex-

14

actly the opposite: AEDPA’s entire structure demonstrates that Congress intended just that. AEDPA demands that a petitioner lodge all his claims and evidence in state court before filing any federal habeas

petition. § 2254(b), (c), (d), (e); Rhines v. Weber, 544

U.S. 269, 276–78 (2005). And once the petitioner

raises his claims in state court, he is generally stuck

with the state court record in federal habeas proceedings, Cullen v. Pinholster, 563 U.S. 170, 182 (2010), as

well as the law that existed at the time of the state

court’s decision, Hill, 586 U.S. at 48. Time and again,

this Court has emphasized that AEDPA is not concerned about a petitioner in postconviction proceedings who may not obtain relief that subsequent law

and facts might support. E.g., id. at 48–52; Shinn, 596

U.S. at 388–91; Brown v. Davenport, 596 U.S. 118, 136

(2022); Greene v. Fisher, 565 U.S. 34, 38–39 (2011).

Unsurprisingly, therefore, § 2244(b)(2)(A) similarly

demands that a petitioner assert and develop any

claim based on existing constitutional rules and facts

or forever forfeit them. There is no “I think this is too

harsh” exception available to the judiciary.

Finally, consider the obviously erroneous consequences of the Fifth Circuit’s decision by comparing

the facts in Hill. In 2006—the same year Johnson

murdered his victim—Danny Hill was unsuccessfully

litigating his Atkins claim in state postconviction proceedings. Hill, 586 U.S. at 47. Hill then turned to federal court a year before Johnson filed his original federal habeas petition. See id. In the gap between Hill’s

state proceedings and the Sixth Circuit’s decision, this

Court decided Moore, which ordered state courts to focus on adaptive deficits rather than adaptive

strengths like the state court had done in Hill’s case.

15

Id. at 47, 49–50. The Sixth Circuit relied on Moore to

grant Hill relief, but this Court summarily vacated under § 2254(d)(1) because Moore was not clearly established at the time of the state court’s decision. Id. at

51.

Now borrow some of the facts in this case: Suppose

that, like Hill, Johnson had tried to press his new Atkins claim in state proceedings and then his original

federal habeas petition—all of which were filed

around the time Hill lodged his own filings. Like Hill’s

claim, Johnson’s new Atkins claim would have failed

under § 2254(d)(1) because no clearly established Supreme Court decision would have permitted that

claim. The Fifth Circuit’s precedents, however, encourage litigants like Johnson to avoid that problem

by lying in wait to assert a new claim years down the

road, sidestep § 2254(d)(1) altogether, and glide into

federal court via § 2244(b). Besides establishing a perverse incentive and thwarting AEDPA’s entire purpose, the Fifth Circuit has created a deeply unfair situation: At least people like Danny Hill tried to litigate

their claims in state court and lost; yet people like

Johnson did not even try, and, by the Fifth Circuit’s

lights, they somehow get a fresh look in federal court

under Moore and other new and recent diagnostic

trends, including the promulgation of the DSM-5. See

In re Johnson, 935 F.3d at 294–95. That absurdity

makes no sense.

Nothing prevented Johnson from raising his new

Atkins claim—that he is intellectually disabled despite an IQ score exceeding 70—prior to and in his

original federal habeas petition. That is what other petitioners tried before Johnson even committed his

16

crime, even though existing facts and precedents suggested those attempts would be unsuccessful. See Hall

v. Florida, 572 U.S. 701, 724 (2014); Moore, 581 U.S.

at 13–14. 3 Johnson bore the same burden to try—he

simply refused and opted to ambush the State of Texas

and the federal judiciary on the eve of his execution.

That gambit requires an admonishment, not a reward.

There is no textual, structural, or policy rationale in

AEDPA for the Fifth Circuit’s preferential treatment

of those like Johnson who “sandbag state courts by selecting a few promising claims for airing” only to construct a new claim years later based on old law “should

[earlier] proceedings come up short.” Shinn, 596 U.S.

at 391 (cleaned up).

III. STATES HAVE NO ASSURANCE OF FINALITY

UNDER THE FIFTH CIRCUIT’S APPROACH.

AEDPA prioritized the States’ need for, and entitlement to, finality. Id. at 377. A State first obtains an

assurance of finality after a prisoner exhausts the direct review process. Shea v. Louisiana, 470 U.S. 51,

59–60 (1985). This interest in finality only continues

to grow with each additional round of review. After the

resolution of the original § 2254 petition, “the State’s

interests in finality are all but paramount.” Calderon,

523 U.S. at 557. The petitioner “has already had extensive review of his claims in federal and state

courts.” Id. That is why absent a strong claim of new

facts showing actual innocence or a new, retroactive,

3 Hall started litigating his Atkins claim where he challenged

Florida’s 70 IQ cutoff in 2004, see Hall v. State, 109 So. 3d 704,

707 (Fla. 2012), rev’d, 572 U.S. 701 (2014), while Moore brought

his claim in 2003, Ex parte Moore, 470 S.W.3d 481, 504 (Tex.

Crim. App. 2015), rev’d, 581 U.S. 1 (2017).

17

and previously unavailable constitutional rule announced by this Court, AEDPA provides a prisoner no

further federal refuge.

The Fifth Circuit’s decision below tramples on this

guarantee of finality. So long as a petitioner finds

some new fact development or a new court opinion

crediting his current theory, he can charge into federal

court years after his prior habeas proceedings concluded and demand another attempt to set aside his

conviction or sentence. In re Johnson, 935 F.3d at 292–

93; In re Cathey, 857 F.3d at 230–34. In fact, he can

even claim a nonprofit, rather than the Supreme

Court, determines whether a constitutional rule is

available to him.

The perils of this approach are best evidenced in

Atkins claims. This Court’s decisions dictate that “current medical standards” “[r]eflecting improved understanding over time” inform whether a petitioner is intellectually disabled and ineligible for the death penalty. Moore, 581 U.S. at 20; accord Hall, 572 U.S. at

721–23. Importing that reasoning into § 2244(b), the

Fifth Circuit “precedentially determined” it must

“equate legal availability” of an Atkins claim “with

changes in the standards for psychiatric evaluation” of

intellectual disability. In re Johnson, 935 F.3d at 294.

More simply, any update to the DSM or new theories

of how to consider IQ scores authorizes a petitioner to

bring a new Atkins claim in a second or successive petition. See id. at 293; In re Cathey, 857 F.3d at 227–28.

AEDPA’s statute of limitations also poses no bar because the petitioner can cite these same updates as

new factual predicates creating new one-year windows

to bring his claims. In re Johnson, 935 F.3d at 296.

18

That is a recipe for eternal Atkins claims and zero

finality. Medical standards surrounding intellectual

disability are “constantly evolv[ing],” Bourgeois v.

Watson, 141 S. Ct. 507, 508–09 (2020) (Sotomayor, J.,

dissenting from the denial of certiorari), with a trend

towards broadening those arguably within the scope

of the diagnosis, see Hall, 572 U.S. at 732 (Alito, J.,

dissenting). Start with the changes to the intellectual

functioning component. The American Association on

Intellectual and Development Disabilities (AAIDD)

formerly established a “baseline ‘intellectual functioning cutoff ’ ” at an “IQ of 70 or below,” before raising it

to “approximately 70 to 75 or below” in 1992. Id. (citation omitted). Moving the cut-off from 70 to 75 “double[d] the number of people from the given population

that are potentially eligible for consideration.” 4 And

with the DSM-5-TR released in 2022, the APA allows

even IQs above 75 to qualify. DSM-5-TR at 42; cf.

DSM-5 at 37.

The adaptive functioning and age of onset requirements likewise continually change. The AAIDD’s 12th

edition of its manual, released in 2021, moved the

manifestation period from age 18 to 22. 5 Cf. Atkins,

536 U.S. at 318 (noting “clinical definitions” requiring

intellectual disability to “manifest before age 18”). And

while the DSM-5 noted that, “[t]o meet diagnostic criteria for intellectual disability, the deficits in adaptive

4 Daniel J. Reschly et al., Mental Retardation: Determining

Eligibility for Social Security Benefits 211 (2002).

5

AAIDD,

FAQ

on

Intellectual

Disability,

https://perma.cc/J2N6-K23Z.

19

functioning must be directedly related to the intellectual impairments,” DSM-5 at 38, the DSM-5-TR eliminated this requirement, DSM-5-TR at 42–43.

According to the Fifth Circuit, these changes all

“open[ ] the door” to second or successive petitions. In

re Johnson, 935 F.3d at 293–94. And even if the diagnostic guidelines themselves do not change, shifts in

courts’ consideration of IQ scores can also make claims

newly available. In re Cathey, 857 F.3d at 231–32.

This “sweeping argument that a fresh intellectualdisability claim arises every time the medical community updates its literature” ensures “a never-ending

series of reviews and re-reviews”—exactly what

AEDPA was intended to prevent. Bourgeois v. Watson,

977 F.3d 620, 636, 638 (7th Cir. 2020) (citation omitted), overruled on other grounds, Agofsky v. Baysore,

160 F.4th 857 (7th Cir. 2025). To be sure, a state petitioner ultimately has only one chance to raise his

claim, § 2244(b)(1), but he is highly incentivized to

wait until the brink of execution to assert the claim.

There almost always will be some new study or lower

court decision he may cite as a changing circumstance

leading him to think his claim is newly (or more) viable, especially as future editions of the DSM will be a

“living document” with regular “updates occurring in

step with scientific advances.” 6 Why bring a borderline

Atkins claim in an initial petition and risk forfeiting

6 E.g., Dost Öngür et al., The Future of DSM: A Report from

the Structure & Dimensions Subcommittee 8, Am. J. Psychiatry

In Advance (Jan. 28, 2026), https://perma.cc/2VGV-XH4A; Deborah Brauser, APA Unveils Early Plans for the Next DSM, Medscape (June 2, 2025), https://perma.cc/235L-B93U.

20

the chance to cite the newest favorable literature and

caselaw at the eleventh hour?

This issue is not limited to State prisoners. If anything, the issue may be worse as to federal prisoners,

for they face no do-over bar like the one found in

§ 2244(b)(1). Bowe, 146 S. Ct. at 466. And since the

federal-prisoner

counterpart—§ 2255(h)(2)—uses

identical language to § 2244(b)(2)(A) in authorizing a

second or successive petition, a federal petitioner in

the Fifth Circuit may bring his Atkins claim again and

again (and again), claiming new developments make

the current version of his claim available for the first

time. Ironically, the past repeated failures would only

prove that Atkins was “previously unavailable” to the

petitioner. In re Johnson, 935 F.3d at 294.

These problems, moreover, are not limited to Atkins claims but apply with full force to any claim based

on a retroactive constitutional rule. Take ineffective

assistance of counsel. Strickland v. Washington, 466

U.S. 668 (1984), was once a new and retroactive rule. 7

New cases or ABA guidelines are often invoked to refine requirements for effective performance of counsel.

Williams, 529 U.S. at 396; Wiggins v. Smith, 539 U.S.

510, 522, 524 (2003); Rompilla v. Beard, 545 U.S. 374,

387 & n.7 (2005). Undoubtedly, some prisoners may

not believe they have viable Strickland claims prior to

developments such as these. See Wiggins, 539 U.S. at

542–43 (Scalia, J., dissenting) (“There was nothing in

Strickland … to support Williams’ statement that

7 Strickland itself was a habeas case and resulted in vacaturs

and remands of other then-pending habeas petitions from state

prisoners. E.g., Solomon v. Harris, 467 U.S. 1211 (1984); Burger

v. Zant, 467 U.S. 1212 (1984).

21

trial counsel had an ‘obligation to conduct a thorough

investigation of the defendant’s background.’ ” (citation omitted)). Yet the Fifth Circuit’s approach to

§ 2244(b)(2)(A) threatens to unleash a wide swath of

new Strickland claims. And it certainly will do so the

next time any Strickland modification arises, whether

in this Court or elsewhere. See In re Cathey, 857 F.3d

at 231 (concluding Cathey had a new claim because

Texas courts first discussed the “Flynn Effect” after

his original habeas petition).

Second Amendment challenges to firearms convictions also loom large. If and when this Court recognizes the retroactivity of its recent Second Amendment decisions, 8 any follow-on applications of the history and tradition test could suggest a petitioner’s

claim is now available, even for those convicted long

after District of Columbia v. Heller, 554 U.S. 570

(2008), and N.Y. State Rifle & Pistol Ass’n, Inc. v.

Bruen, 597 U.S. 1 (2022). And again, any federal prisoner will be able to litigate and relitigate his challenge

based on each new development.

Finally, consider the immense costs to the States

caused by the Fifth Circuit’s rule. Misconstruing

§ 2244(b)(2)(A) to authorize these outcomes inflicts

“profound injur[ies]” to the States’ “powerful and legitimate interest in punishing the guilty.” Calderon, 523

U.S. at 556 (citation omitted). Intervention now is essential because States cannot seek certiorari when a

federal court simply concludes old rules authorize new

8 Insofar as such decisions address whether “particular conduct can[ ] constitutionally be criminalized,” once the question

reaches this Court, these rules arguably would be deemed substantive and retroactive. See Edwards, 593 U.S. at 264 n.3.

22

petitions. § 2244(b)(3)(E). Instead, States must endure

years of unwarranted discovery and relitigation of convictions and sentences that should be final. This case

demonstrates as much. Johnson’s second petition was

authorized in 2019. Texas had to wait six years for an

opportunity to ask the Fifth Circuit to reconsider its

erroneous reading and then come to this Court. No

State should have to endure that tortuous journey

again to tee this issue up for the Court. And since the

Fifth Circuit has doubled down even after two sister

circuits rejected its reasoning, Pet.16–20, these profound harms (and their multiyear shield from review)

will recur again and again until this Court steps in.

CONCLUSION

The petition for writ of certiorari should be

granted.

23

ELIZABETH B. MURRILL

Attorney General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

Respectfully submitted,

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

ELIZABETH L. BROWN

Assistant Solicitor General

Counsel for Amicus Curiae State of Louisiana

(additional counsel listed below)

March 25, 2026

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ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

KRIS W. KOBACH

Attorney General

State of Kansas

STEPHEN J. COX

Attorney General

State of Alaska

RUSSELL COLEMAN

Attorney General

State of Kentucky

TIM GRIFFIN

Attorney General

State of Arkansas

LYNN FITCH

Attorney General

State of Mississippi

JAMES UTHMEIER

Attorney General

State of Florida

CATHERINE HANAWAY

Attorney General

State of Missouri

CHRIS CARR

Attorney General

State of Georgia

AUSTIN KNUDSEN

Attorney General

State of Montana

RAÚL LABRADOR

Attorney General

State of Idaho

MICHAEL T. HILGERS

Attorney General

State of Nebraska

THEODORE E. ROKITA

Attorney General

State of Indiana

DREW WRIGLEY

Attorney General

State of North Dakota

BRENNA BIRD

Attorney General

State of Iowa

DAVE YOST

Attorney General

State of Ohio

GENTNER DRUMMOND

Attorney General

State of Oklahoma

DAVE SUNDAY

Attorney General

State of Pennsylvania

ALAN WILSON

Attorney General

State of South Carolina

MARTY JACKLEY

Attorney General

State of South Dakota

JONATHAN SKRMETTI

Attorney General

State of Tennessee

JOHN B. MCCUSKEY

Attorney General

State of West Virginia

25