Reply 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 Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

REPLY BRIEF FOR PETITIONER

KEN PAXTON

Attorney General of Texas

WILLIAM R. PETERSON

Solicitor General

Counsel of Record

BRENT WEBSTER

First Assistant Attorney

General

WILLIAM F. COLE

Principal Deputy Solicitor

General

OFFICE OF THE TEXAS

CAMERON FRASER

ATTORNEY GENERAL

Assistant Solicitor General

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

GWENDOLYN S. VINDELL

William.Peterson@oag.texas.gov Assistant Attorney General

(512) 936-1700

Counsel for Petitioner

TABLE OF CONTENTS

Page

Table of Authorities ........................................................... ii

Reply Brief .......................................................................... 1

I. The Decision Below Implicates an Acknowledged

and Entrenched Circuit Split. ............................... 2

II. The Issue Warrants Resolution by this Court. ... 7

III. This Petition Presents an Ideal Vehicle. ............ 10

Conclusion ......................................................................... 12

ii

TABLE OF AUTHORITIES

Page(s)

Cases:

Atkins v. Virginia,

536 U.S. 304 (2002) ........................................ 3, 4, 6, 9, 10

Booth v. Churner,

532 U.S. 731 (2001) .......................................................... 9

In re Bowles,

935 F.3d 1210 (11th Cir. 2019) ................... 1, 2, 3, 4, 5, 8

In re Cathey,

857 F.3d 221 (5th Cir. 2017) ................. 2, 3, 6, 7, 8, 9, 11

Chaidez v. United States,

568 U.S. 342 (2013) ........................................................ 10

Davis v. Norris,

423 F.3d 868 (8th Cir. 2005) ....................................... 2, 6

Edwards v. Vannoy,

593 U.S. 255 (2021) .......................................................... 9

Gray-Bey v. United States,

209 F.3d 986 (7th Cir. 2000) ....................................... 2, 5

Hall v. Florida,

572 U.S. 701 (2014) ...................................................... 3, 4

Harrington v. Richter,

562 U.S. 86 (2011) ............................................................ 7

In re Johnson,

935 F.3d 284 (5th Cir. 2019) ........................................... 2

Lambrix v. Singletary,

520 U.S. 518 (1997) .......................................................... 9

Moore v. Texas,

581 U.S. 1 (2017) .............................................................. 3

Muñoz v. United States,

28 F.4th 973 (9th Cir. 2022) ........................................ 2, 6

iii

In re Richardson,

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

Slusser v. Vereen,

36 F.4th 590 (4th Cir. 2022) .................................... 1, 2, 5

Teague v. Lane,

489 U.S. 288 (1989) ........................................................ 10

United States v. Moore,

589 F. App’x 414 (10th Cir. 2015) .......................... 2, 4, 5

In re Williams,

364 F.3d 235 (4th Cir. 2004) ....................................... 2, 5

Statutes:

28 U.S.C.

§ 2244(b)(2) ............................................ 2, 4, 5, 8, 9, 10, 11

§ 2244(b)(3) ...................................................................... 10

§ 2255 .......................................................................... 2, 5, 9

1

REPLY BRIEF

This petition concerns a pure issue of statutory interpretation on which there is an acknowledged circuit split.

Respondent Dexter Johnson does not deny that under

the holding of the Eleventh Circuit, AEDPA bars his second federal habeas petition because whether a rule was

“previously unavailable” does not depend on “whether

the claim would have been a winning one at the time of

the first petition.” In re Bowles, 935 F.3d 1210, 1216–19

(11th Cir. 2019); see also Slusser v. Vereen, 36 F.4th 590,

596 (4th Cir. 2022) (holding that “previously unavailable”

is not affected by a “prisoner’s ability to . . . prevail”).

To justify his second federal habeas petition, Johnson

relies on the Fifth Circuit’s contrary interpretation of

AEDPA, in which a second federal petition can be filed if

the claim lacked “any possibility of merit” at the time of

the initial federal habeas petition. BIO 20.

The facts of this case alone illustrate the importance

of the issue. The Fifth Circuit’s erroneous authorization

of Johnson’s successive petition has delayed his execution by nearly seven years. Despite their high cost, authorization decisions are unreviewable by this Court.

And this recurring issue of habeas procedure, which

arises most frequently in capital cases, should be uniform

across the circuits.

There is no need for further percolation. The issue is

one of statutory interpretation in which the two alternatives are known. The Eleventh Circuit has analyzed and

rejected the Fifth Circuit’s interpretation, and the Fifth

Circuit narrowly denied rehearing en banc, adhering to

its interpretation. Certiorari is warranted now.

2

I. The Decision Below Implicates an Acknowledged

and Entrenched Circuit Split.

As the petition explains, the courts of appeals are

openly divided over what it means for a claim to “rel[y]

on a new rule of constitutional law . . . that was previously

unavailable.” 28 U.S.C. § 2244(b)(2)(A); see also id.

§ 2255(h)(2).

The Eleventh Circuit considered and rejected the

Fifth Circuit’s rule. “There is no futility exception to the

AEDPA’s restrictions on second and successive petitions.” In re Bowles, 935 F.3d at 1217 (discussing and rejecting In re Cathey, 857 F.3d 221 (5th Cir. 2017) (per

curiam), and In re Johnson, 935 F.3d 284 (5th Cir. 2019)).

In denying rehearing en banc of the decision below,

several Fifth Circuit judges noted the circuit split and

rejected In re Cathey. See Pet. App. 73a (Ho, J., dissenting from denial of rehearing en banc) (“Our decision in

Cathey has been rejected by at least one other circuit.”).

At least the Fourth Circuit follows the Eleventh Circuit. Slusser, 36 F.4th at 596; In re Williams, 364 F.3d

235, 239 (4th Cir. 2004); see also United States v. Moore,

589 F. App’x 414, 415 (10th Cir. 2015); Gray-Bey v.

United States, 209 F.3d 986, 988 (7th Cir. 2000) (per curiam). And at least the Ninth Circuit follows the Fifth

Circuit. Muñoz v. United States, 28 F.4th 973, 976 & n.3

(9th Cir. 2022); see also Davis v. Norris, 423 F.3d 868,

879 (8th Cir. 2005). This split is ripe for this Court’s review.

A. Johnson attempts to minimize this conflict as

“disagree[ment] over which factual scenarios amount to

a feasible claim.” BIO 10; see also id. at 11 (conceding “a

difference in mere application”).

3

That is wrong. The dispute concerns statutory interpretation: the meaning of “new rule of constitutional law

. . . that was previously unavailable.”

Under the Fifth Circuit’s interpretation, a rule was

previously available only if a claim based on the rule had

“some possibility of merit.” Pet. App. 6a (quoting In re

Cathey, 857 F.3d at 232).

Under the Eleventh Circuit’s interpretation, a rule

was previously available if “the petitioner could have relied on that ‘new rule’ in his initial habeas petition.” In re

Bowles, 935 F.3d at 1218. It is irrelevant “whether the

claim would have been a winning one,” id. at 1219, or

“lacked merit under case law existing at that time,” id.

at 1217.

Both circuits have acknowledged this as a conflict

over statutory interpretation. Id. at 1216–17; Pet. App.

73a (Ho, J., dissenting from denial of rehearing en banc).

B. Nor is Johnson correct to characterize the Eleventh Circuit’s holding as “dicta.” BIO 12. After rejecting

the Fifth Circuit’s interpretation, the Eleventh Circuit

reinforced its interpretation of the statute by explaining

that the petitioner’s claim “d[id] not rely on Atkins [v.

Virginia, 536 U.S. 304 (2002)] so much as it d[id] on Hall

[v. Florida, 572 U.S. 701 (2014)].” In re Bowles, 935 F.3d

at 1219. “Despite what he calls it, his claim actually is a

Hall claim, not an Atkins claim.” Id.

The same is true of Johnson’s claim. Johnson admits

that his claim relies on the DSM-5 and Moore v. Texas,

581 U.S. 1 (2017). BIO 5. Johnson asserts that his claim

was “functionally unavailable” until Texas courts

“adopt[ed] the DSM-5 as the governing criteria for an

Atkins claim.” Id. at 20–21.

4

Bowles made the same assertion: “Bowles insists that

‘[i]t was not until Hall that Florida was forced to adapt

to current medical standards,’ and that change made his

‘IQ score [of 74] qualifying, thus making an intellectual

disability claim viable for the first time.’” In re Bowles,

935 F.3d at 1216 (alterations in original).

In the same way that Bowles’ claim “d[id] not rely on

Atkins so much as it d[id] on Hall,” id. at 1219, Johnson’s

claim does not rely on Atkins so much as it does on

Moore. Like Bowles, Johnson asserts a claim “dressed

up to look like an Atkins claim,” id., because Moore has

not been “made retroactive to cases on collateral review

by [this Court],” 28 U.S.C. § 2244(b)(2)(A). See, e.g., In

re Richardson, 802 F. App’x 750, 755–56 (4th Cir. 2020)

(per curiam).

This is not an alternative holding but confirms the

Eleventh Circuit’s interpretation of “previously unavailable.” Under AEDPA’s plain text, “whether a claim is

‘previously unavailable’ depends on when a ‘new rule of

constitutional law’ is made retroactive by the Supreme

Court.” In re Bowles, 935 F.3d at 1218. “That a claim has

become meritorious for some other reason has no bearing on whether the claim was ‘previously unavailable’ for

§ 2244(b)(2)(A) purposes.” Id.

According to Johnson, his claim became viable only

after “the publication of the DSM-5” and after Texas

courts “adopt[ed] the DSM-5 as the governing criteria

for an Atkins claim.” BIO 20. In other words, his claim

relies on (1) new evidence and (2) a change in the law

other than “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme

Court.” 28 U.S.C. § 2244(b)(2)(A).

5

These developments do not permit the filing of Johnson’s second federal habeas petition. Id. § 2244(b)(2).

The Fifth Circuit’s contrary interpretation of “previously unavailable” conflicts with the Eleventh Circuit’s

interpretation and AEDPA’s plain text.

C. Johnson notes that other circuits “have little to

no discussion of the merits of the underlying claim,” BIO

12, but this fact hardly supports him. Like the Eleventh

Circuit, other circuits also recognize that the merits of

the underlying claim have “no bearing” on whether a rule

was previously unavailable. In re Bowles, 935 F.3d at

1218.

The Fourth Circuit, for example, recognizes that section 2244(b)(2)(A) turns on the timing of this Court’s decision: “[C]onstitutional rules that were established at

the time of the applicant’s last PFA motion were not ‘previously unavailable.’” In re Williams, 364 F.3d at 239; see

also Slusser, 36 F.4th at 596 (“‘Previously unavailable’ in

Section 2255(h)(2) refers to the existence of the ‘new rule

of constitutional law,’ not to a particular prisoner’s ability to utilize or prevail on it.”).

Johnson dismisses Slusser as having “one conclusory

sentence,” BIO 12, but does not address In re Williams

or other Fourth Circuit cases.

The Seventh and Tenth Circuits have also held that

“previously unavailable” depends on the timing of this

Court’s decisions. See Pet. 20 (discussing Moore, 589 F.

App’x at 415; Gray-Bey, 209 F.3d at 988). Like the

Fourth Circuit’s decisions, these decisions do not address “the merits of the underlying claim” because the

merits of the underlying claim are irrelevant.

6

D. Johnson incorrectly characterizes the Ninth Circuit as discussing only “challenges pro se prisoners face

when preparing legal filings.” BIO 12 (quoting Muñoz,

28 F.4th at 978).

In Muñoz, the Ninth Circuit addressed the meaning

of “previously unavailable,” 28 F.4th at 978, and adopted

In re Cathey’s holding that availability depends on

“whether the prisoner had a factual basis for a claim,” id.

at 979 (citing In re Cathey, 857 F.3d at 230–33). The

Ninth Circuit then applied this rule in holding that the

petitioner’s claim was available in his initial habeas proceeding, noting that “Muñoz had the facts that he needed

for his claim.” Id. at 980.

Under the Ninth Circuit’s holding, Atkins was “previously unavailable” to Johnson because he did not have

the facts—the DSM-5—that he allegedly needed for his

claim.

Johnson similarly incorrectly describes the Eighth

Circuit as “merely ma[king] a passing reference to ‘evidence.’” BIO 12 (quoting Davis, 423 F.3d at 879). The

Eighth Circuit relied on the availability of evidence to

the petitioner in holding that a claim was previously

available: “The evidence Davis relies on in support of his

request to raise this claim was available to him in the district court[.]” Davis, 423 F.3d at 879. As a result, “the

issue was available to Davis.” Id. Analysis of the evidence

available to the petitioner formed part of the Eighth Circuit’s holding.

There is an acknowledged and entrenched split on a

question of statutory interpretation that is squarely implicated by the facts of this case.

7

II. The Issue Warrants Resolution by this Court.

This important and recurring issue concerning the interpretation of AEDPA’s provision limiting successive

habeas petitions warrants resolution by this Court.

A. As the petition details and amici States confirm,

the uniformity of federal law is particularly important in

the context of habeas procedure. Pet. 22–24. On both

sides of the circuit split, the stakes are high. The Fifth

Circuit’s rule, if wrong, erroneously intrudes on state

sovereignty. Harrington v. Richter, 562 U.S. 86, 103

(2011); see also State Amicus Br. 3 (explaining that the

Fifth Circuit’s rule both conflicts with the statutory text

and “frustrates States’ ability to carry out just punishment for violations of their laws”). The Eleventh Circuit’s rule, if wrong, erroneously deprives prisoners of

federal court review of their convictions and sentences.

Either way, the right of a petitioner to file a successive

habeas petition should not vary from circuit to circuit.

B. Johnson minimizes the significance of the Fifth

Circuit’s rule by suggesting that it narrowly applies only

if a claim “bec[a]me a ‘possible claim’ because the framework for analyzing it changed around the time or after

th[e] first application was denied.” BIO 15 (quoting Pet.

App. 58a–59a).

But the Fifth Circuit’s interpretation of “previously

unavailable” extends beyond those circumstances. The

decision below reaffirms that the Fifth Circuit has

adopted a far broader test: “[A] claim must have some

possibility of merit to be considered available.” Pet. App.

6a (quoting In re Cathey, 857 F.3d at 232). This principle

does not depend on why the claim previously lacked

“some possibility of merit” or why it later acquired “some

possibility of merit.” Under In re Cathey, if a claim

8

lacked “some possibility of merit”—for any reason—

then it was “previously unavailable” and thus can be asserted in a second or successive habeas petition. Id.

(quoting In re Cathey, 857 F.3d at 232).

The Eleventh Circuit and district court correctly recognized that the Fifth Circuit’s interpretation creates a

“futility exception to the AEDPA’s restrictions on second and successive petitions.” In re Bowles, 935 F.3d at

1217; Pet. App. 25a.

As the petition explains, this holding erases the strict

limits on claims based on new evidence. Pet. 25. Rather

than demonstrate “by clear and convincing evidence

that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense,” 28 U.S.C. § 2244(b)(2)(B)(ii), habeas

petitioners should instead proceed under section

2244(b)(2)(A) and argue that the claim was “previously

unavailable” because it had no possibility of merit without the new evidence.

The Eleventh Circuit recognized these absurdities

when it rejected In re Cathey. “Congress did not say that

the claim could proceed if it relied on any other type of

change in case law.” In re Bowles, 935 F.3d at 1217–18.

And “Congress knew how to provide for second and successive petitions based on factual developments, such as

the publication of a new DSM manual” but did not do so.

Id. at 1218.

The Fifth Circuit’s “possibility of merit” interpretation of “previously unavailable” extends beyond the specific facts at issue in this case.

C. The petition explains the errors in the Fifth Circuit’s analysis. AEDPA’s text “does not ask whether a

9

claim was available but whether a rule was available.”

Pet. 26 (discussing 28 U.S.C. § 2244(b)(2)(A)). “Previously unavailable” modifies “new rule of constitutional

law,” not “claim.” Pet. 27 & n.7.

Rather than asking whether a “rule” was available to

a petitioner, the Fifth Circuit erroneously focused on

whether a “claim” was available. See In re Cathey, 857

F.3d at 232 (“We think a claim must have some possibility of merit to be considered available.” (emphasis

added)). Johnson commits the same error. See BIO i

(proposing the Question Presented as “[w]hether a claim

is ‘previously unavailable’”); id. at 3 (“whether a claim

was ‘previously unavailable’”); id. at 9 (same); id. at 10

(same); id. at 12 (same); id. at 20 (same); id. at 20 (arguing that “Johnson’s Atkins claim was not available”).

These arguments are unfaithful to AEDPA’s text,

which allows a successive petition if the claim “relies on

a new rule of constitutional law . . . that was previously

unavailable.” 28 U.S.C. § 2244(b)(2)(A); accord id.

§ 2255(h)(2). The question is whether the rule of constitutional law was “capable of use,” Booth v. Churner, 532

U.S. 731, 737 (2001), not whether a claim would have succeeded.

D. Johnson also disregards the “new rule” requirement. See Pet. 27–28. Whether a rule is “new” depends

on the law when a defendant’s conviction became final: If

a “rule was already ‘apparent to all reasonable jurists’”

at the time the defendant’s conviction became final, it is

not a “new rule.” Edwards v. Vannoy, 593 U.S. 255, 265

(2021) (quoting Lambrix v. Singletary, 520 U.S. 518, 528

(1997)).

Atkins was decided years before Johnson’s conviction became final (indeed, years before Johnson

10

committed his crimes). Pet. 7–8. Its rule was apparent to

all reasonable jurists at the time his conviction became

final and cannot be characterized as a “new rule of constitutional law” with respect to Johnson.

Johnson has no response beyond the conclusory assertion that “Atkins [was] a new rule of constitutional

law made retroactive by this Court.” BIO 20.

But a rule is not “new” in the abstract; it is “new” for

a particular defendant. See Teague v. Lane, 489 U.S. 288,

301 (1989) (plurality op.) (“[A] case announces a new rule

if the result was not dictated by precedent existing at the

time the defendant’s conviction became final.”); accord

Chaidez v. United States, 568 U.S. 342, 347 (2013)

(same); see also State Amicus Br. 7–8.

The decision below was incorrect to hold that Johnson’s Atkins claim “relies on a new rule of constitutional

law . . . that was previously unavailable,” 28 U.S.C.

§ 2244(b)(2)(A), and to affirm the denial of the motion to

dismiss.

III. This Petition Presents an Ideal Vehicle.

The decision below squarely implicates the circuit

split, and no preliminary issues prevent this Court from

deciding the issue.

A. This petition represents the first opportunity for

this Court to resolve the split. Johnson acknowledges the

bar on seeking rehearing or certiorari from authorization decisions, id. § 2244(b)(3)(E), but speculates that the

courts of appeals might grant rehearing en banc sua

sponte, BIO 13. But Johnson fails to address the 30-day

deadline to grant or deny authorization. 28 U.S.C.

§ 2244(b)(3)(D). The Fifth Circuit narrowly denied rehearing en banc in this case, and Johnson offers no

11

reason to believe the Eleventh Circuit (or any other circuit) will grant rehearing to change its position. The split

shows no sign of resolving without this Court’s intervention.

B. Johnson’s quibbles with the form of the certified

question disregard its context and do not present a vehicle issue. The district court (correctly) understood In re

Cathey to have adopted a “judicially created exception”

to AEDPA. Pet. App. 25a (describing the Fifth Circuit as

“read[ing]

a

futility

exception

into

section

2244(b)(2)(A)”). The certified question—“[w]hether

there can be judicially created exceptions to

[§ 2244(b)(2)],” Pet. App. 8a—reflected that understanding. The panel also understood the certified question in

this context: “[W]e understand the parties’ question

more accurately to be this: Whether ‘previously unavailable’ can be read in the way Cathey instructs[?]” Id. at

6a. And the panel, “[i]n answer to that question . . . affirm[ed] [its] interpretation of ‘previously unavailable’ in

Cathey as the correct interpretation.” Id.

C. Johnson suggests waiting to grant review until a

final judgment, BIO 17–18, but the issue is fully presented now. No further factual development will aid this

Court’s review.

Moreover, this case has already been delayed far too

long. Johnson committed his brutal crimes nearly twenty

years ago and was sentenced to death in June 2007.

Johnson was scheduled for execution in 2019 until the

Fifth Circuit erroneously authorized him to file a second

federal habeas petition. For the people of Texas in general and for the families of Johnson’s victims in particular, justice delayed is justice denied.

12

CONCLUSION

For these reasons, this Court should grant the petition for certiorari.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

WILLIAM R. PETERSON

Solicitor General

Counsel of Record

BRENT WEBSTER

First Assistant Attorney

General

WILLIAM F. COLE

Principal Deputy Solicitor

General

OFFICE OF THE TEXAS

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

William.Peterson@oag.tex

as.gov

(512) 936-1700

CAMERON FRASER

Assistant Solicitor General

GWENDOLYN S. VINDELL

Assistant Attorney General

Counsel for Petitioner

May 2026