Justices weigh whether a new psychiatric manual reopens a Texas death row prisoner's disability claim
The November 4 argument tested whether changed medical standards permit a second federal petition; the Court has not issued a ruling.
The Supreme Court heard an hour of argument on Wednesday, Nov. 4, in Guerrero v. Johnson, No. 25-1003, a Texas death penalty case about when a prisoner may file a second federal habeas petition. The prisoner, Dexter Johnson, wants to argue that he is intellectually disabled and so cannot be executed under Atkins v. Virginia. His argument is that the claim could not succeed under the medical standards in use when he filed his first federal petition. The dispute concerns whether later standards make the constitutional rule “previously unavailable” for this purpose. Texas says a change in a medical manual does not reopen the door that Congress closed in 1996.
The argument ran from 10:04 a.m. to 11:03 a.m. Eastern, according to the official transcript. Texas Solicitor General William R. Peterson argued for the state. Emily M. Ferguson, an assistant to the U.S. solicitor general, argued for the Trump administration in support of Texas. Jeremy Schepers, a Dallas lawyer, argued for Johnson.
The questions did not point clearly to one result. Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson pressed Texas and the federal government on whether a rule can be "available" to a prisoner who could not have won with it. Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett pressed Johnson's lawyer on where his reading would stop as the diagnostic manuals keep changing. The Court’s docket, checked November 12, records the argument but no decision. Questions at argument are not votes or a judgment.
The law at issue#
The Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA, limits second or successive federal habeas petitions from state prisoners. Under 28 U.S.C. § 2244(b)(2), a new claim can go forward in only two situations. Under paragraph (A), the claim must rely on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Under paragraph (B), the facts behind the claim could not have been found earlier with due diligence, and the facts must show by clear and convincing evidence that no reasonable factfinder would have found the prisoner guilty.
The Court decided Atkins in 2002. It held that the Eighth Amendment bars executing people with intellectual disability, and it left states to decide how to judge that. In Hall v. Florida (2014) and Moore v. Texas (2017), the Court said states must be informed by current medical standards. In Moore, the Court faulted Texas for relying on outdated standards.
The question presented, as summarized by Cornell's Legal Information Institute, is whether a claim based on a rule announced before a prisoner's first habeas petition can count as relying on a "previously unavailable" rule because later changes in medical standards made the claim stronger.
How the case got here#
Johnson was convicted of capital murder and sentenced to death for the June 2006 killings of Maria Aparece, 23, and Huy Ngo, 17, according to a SCOTUSblog preview by Nora Collins and Zachary Shemtob. Texas's highest criminal court affirmed the conviction in 2010. An expert at trial estimated his IQ at between 74 and 88, the preview said.
He filed his first federal habeas petition in June 2011. In May 2013, while that petition was pending, the American Psychiatric Association published the fifth edition of its Diagnostic and Statistical Manual of Mental Disorders, the DSM-5. Johnson's merits brief says the DSM-5 displaced "the rigid IQ threshold, replacing it with a standard focused more on adaptive functioning deficits." A federal court denied his first petition in August 2013, and the Fifth Circuit affirmed in 2015.
In 2019, after an IQ test produced a score of 70, Johnson asked the U.S. Court of Appeals for the Fifth Circuit for permission to file a second petition raising an Atkins claim. The Fifth Circuit granted it under its 2017 decision in In re Cathey, which treats an Atkins claim as "previously unavailable" if it had no possibility of merit under the standards in place when the first petition was filed. A federal district court in Texas later declined to dismiss the petition, and the Fifth Circuit affirmed on July 23, 2025. The full court denied rehearing on Jan. 12, 2026, by a 9-7 vote, with Judge James Ho among the dissenters. The Supreme Court agreed to hear the case on June 15, 2026, according to the Court's docket.
- Supreme Court decides Atkins v. Virginia
- Maria Aparece and Huy Ngo are killed
- Texas Court of Criminal Appeals affirms Johnson's conviction
- Johnson files his first federal habeas petition
- American Psychiatric Association publishes DSM-5
- First federal petition denied
- Hall v. Florida
- Moore v. Texas
- Johnson seeks leave to file a second petition with an Atkins claim
- Fifth Circuit affirms ruling for Johnson
- Fifth Circuit denies rehearing, 9-7
- Supreme Court grants review
- Oral argument
Source: Supreme Court docket, SCOTUSblog
Texas: a rule cannot be "new" twice#
Peterson opened by saying Congress chose finality over "error correction at all costs." He told the Court that Congress allowed new claims "only in limited circumstances that do not include changes in the diagnostic standards for intellectual disability." Atkins, he said, was decided before Johnson committed his crimes, and Johnson relied on it in his first federal petition. Moore, the later legal change, has not been made retroactive by the Court, he said.
The state's written brief made the same case with an image. "A carpenter, for example, likely has a hammer 'available,' even when working on a task for which a hammer would not be necessary or useful," Texas wrote in its merits brief. The brief said the Fifth Circuit's approach "erases the line Congress drew between new law and new facts."
Kagan offered Peterson a different way to see the case. With a change like the one in the DSM, she said, "you might say that there's a kind of Atkins I and an Atkins II." She asked about the common meaning of "available." "If I was going to be laughed out of court, then, really, the rule was unavailable to me," she said. Peterson answered that the rule was "capable of being used, simply not useful."
Jackson questioned whether "new rule of constitutional law made retroactive" refers to timing at all. She described it as a term of art about the character of a rule. She said Congress gave prisoners "one clear shot" at their constitutional claims, and that under the state's reading, "Mr. Johnson will never get that opportunity" because the criteria that make him eligible came after his first petition.
Sotomayor tested the state's position with a hypothetical. Suppose the Court held that the Constitution bars executing anyone over 70, she said. A person sentenced to death at 28 would have to raise the rule in his first petition, "but when he turns 70, he can't." Peterson said that kind of claim would not count as second or successive because it would not be ripe until the time of execution. Sotomayor asked why the same logic did not apply to Johnson. Peterson said Johnson's claim concerns his sentence, not his competence to be executed.
Kavanaugh asked about a harder variation: a rule the Court announces while a prisoner's first petition is still pending. Peterson called that "a difficult question that is not presented on the facts of this case." He said Texas agrees with the Eleventh Circuit's approach in a case called Bowles.
Barrett asked whether the Court could write a narrow ruling tied to these facts. Peterson said it could. "And that's going to solve, we think, 99 percent of the cases," he said, adding that the state's reading would avoid problems that "might result with publication of, say, the DSM-6."
The federal government: the manual is evidence, not law#
Ferguson told the justices that Johnson is seeking to apply "an old rule that was available when he filed his first habeas application 15 years ago." Atkins "is not a new rule with respect to Respondent because it was decided five years before his conviction," she said. She warned that Johnson's reading "would allow successive habeas applications anytime doctors change their understanding of intellectual disability."
The government's amicus brief put it this way: "Standards promulgated by a board of psychiatrists cannot transform a decision of this Court that predates a prior habeas application into a 'new' and 'previously unavailable' rule of constitutional law."
Kagan pushed back. She said that when the medical standard "fundamentally changes, as it did between DSM-IV and DSM-5, you basically get an Atkins II rule." Ferguson replied that "it's difficult to imagine Congress enacting a law that would allow the American Psychiatric Association, without independent action of this Court, to create a new rule of constitutional law." Kagan answered that she suspected Congress "was not thinking about Atkins claims when it wrote this statute," and that the Atkins rule is unusual because its legal standard is supplied "at least partly, maybe principally, by something else."
Alito asked Ferguson whether the DSM is part of the Atkins legal standard or only evidence. Ferguson said the government treats it as evidence.
Sotomayor pressed Ferguson on her answer about timing. Ferguson said that whether a rule is "new" is measured when a defendant's conviction becomes final, while "previous availability is tied to the first habeas application." Sotomayor said: "I understand the General's position, but yours makes no sense. Why would you have two different timeframes?" Ferguson said the statute uses two different terms that both refer to timing. When Ferguson said she did not understand the two governments to be advancing different positions, Sotomayor replied, "We'll both listen to the transcript."
Johnson: existence is not availability#
Schepers told the Court that a rule is available only when a prisoner can actually use it. "Existence and availability aren't the same thing," he said. He pointed to the Court's decisions in Booth v. Churner and Ross v. Blake, which interpreted "available" in a federal law on prison grievances to mean "capable of use."
He argued that the medical standards for intellectual disability are facts "with important legal significance," and that the Court has called those standards the "fundamental premise" of Atkins. "When those standards change, the Eighth Amendment's protected class potentially changes as well," he said.
Schepers also told the justices that the cases are rare. "Mr. Johnson is the only individual who has been authorized to proceed based off of the changes in 2013 in the DSM-5," he said. "And when the DSM was again updated in 2022, no one has been authorized to proceed under those changes."
Johnson's brief made the point with its own version of the state's carpenter image. "No one would say the hammer was available to the carpenter if it were locked in a toolbox he couldn't open," it said. "Mr. Johnson did not change; his intellectual and adaptive characteristics are the same as always."
Thomas asked the first question: "Does Atkins ever stop being a new rule?" Schepers said that, in Johnson's view, Atkins was new when it was decided. Thomas then asked about Marbury v. Madison. Barrett followed up along Thomas's lines with an analogy. "When Alexander Graham Bell invented the telephone, that was new. I don't think anybody would describe the telephone as new today," she said.
Kavanaugh then summarized an amicus brief filed by Louisiana and other states. It says, he told Schepers, that "because medical standards surrounding intellectual disability are constantly evolving, your position is a recipe for eternal Atkins claims and zero finality." Schepers called that "incorrect." He said state prisoners get one opportunity to raise an Atkins claim, "not an eternal sequence of them." Barrett then asked, "What if there were a DSM-6?" Schepers said it would depend on the facts, and that a prisoner who had raised an Atkins claim before would lose.
The rebuttal#
In rebuttal, Peterson read from one of Johnson's own earlier filings, which he cited as Record on Appeal 2420. It said that "the current medical standard for evaluating intellectual functioning in the DSM-5 created a previously unavailable factual basis for the claim, and the Supreme Court's decision in Moore versus Texas created a previously unavailable legal basis." Peterson said the passage described the case "perfectly." His point was that a change in medical standards is a factual development, which the statute handles separately in paragraph (B), and that Moore has not been made retroactive.
Others in the case#
Several outside groups filed briefs. Protasio Aparece, the father of victim Maria Aparece, filed a brief supporting Texas. Louisiana led a group of states in support of Texas at both the petition and merits stages. The National Association of Criminal Defense Lawyers filed a brief supporting Johnson, comparing shifts in intellectual disability science to other changes in forensic science that courts have had to address.
The case follows another Atkins dispute. Last term, in Hamm v. Smith, an Alabama case about how courts should weigh multiple IQ scores, the Court dismissed the case without deciding it, the SCOTUSblog preview noted.
What a ruling could do#
If the Court sides with Texas, Johnson's second petition would be dismissed, and prisoners in the Fifth Circuit would lose the Cathey route for Atkins claims based on later changes in medical standards. Barrett asked whether a ruling could be written narrowly around these facts, which Peterson said would cover most cases.
If the Court sides with Johnson, his second petition and its Atkins claim would continue in the lower courts. The state and its supporters say a ruling for Johnson would invite new claims with each revision of the diagnostic manuals. Johnson's lawyers say such cases are rare, and that he is the only prisoner authorized to proceed on the 2013 changes.
Other arguments during the November 2–4 sitting#
The argument came during a busy week at the Court. On Monday, Nov. 2, the justices heard Maxwell v. Dinis, another habeas case, about how federal prisoners can challenge the denial of First Step Act credits. The same day they heard a Georgia employment case, Younge v. Fulton Judicial Circuit District Attorney's Office, and, on the emergency docket, turned down a Justice Department request to make California set aside mail ballots from more than 20,000 voters. On Tuesday, Nov. 3, they heard St. Mary Catholic Parish v. Roy, a dispute over religious preschools in Colorado's universal preschool program.
Differing perspectives
Should a change in medical standards for intellectual disability let a death-row prisoner file a second federal habeas claim under Atkins?
Each position is summarized as its supporters make it, with equal weight and in alphabetical order. A summary is not an endorsement; the evidence for each is weighed in the story above.
Allow the claim because the rule was not usable before
Who holds it: Dexter Johnson and his lawyers, with the National Association of Criminal Defense Lawyers as amicus
Johnson's lawyers argue that a rule is available only when a prisoner can actually use it, as the Court has read the word in prison-grievance cases. They say his claim had no possibility of merit under the rigid IQ cutoff in place in 2011, and that the DSM-5 and Moore v. Texas changed the framework, not Johnson. They point out that he is the only prisoner authorized to proceed on the 2013 changes and that no one has been authorized under the 2022 update, so the floodgates the state describes have not opened.
In their words: Counsel for Dexter Johnson (merits brief) ↗
Bar the second petition
Who holds it: The State of Texas, through its solicitor general, William R. Peterson, joined by Louisiana and other states as amici
Texas argues that Congress in 1996 allowed second petitions only for new, retroactive rules of constitutional law or for newly discovered facts showing innocence. It says Atkins was decided before Johnson's crimes and was available when he filed his first petition in 2011, even if a later diagnostic manual made his claim stronger. In the state's view, treating each new edition of a medical manual as reviving a legal rule erases the line Congress drew between new law and new facts and would invite fresh claims with every revision.
In their words: Texas Office of the Attorney General (merits brief) ↗
End the delays for victims' families
Who holds it: Protasio Aparece, father of murder victim Maria "Sally" Aparece, as amicus supporting Texas
Aparece argues that two decades of litigation since his daughter and Huy Ngo were killed in June 2006 have denied her family any peace or closure. His brief says repeated habeas filings break the promise of finality that Congress made in 1996, and it cites research and the family's own experience to argue that long delays in carrying out sentences cause lasting harm to victims' relatives. He asks the Court to enforce the limits on second petitions as written.
In their words: Counsel for Protasio Aparece (amicus brief) ↗
Treat diagnostic changes as evidence, not new law
Who holds it: The Trump administration, through the U.S. solicitor general's office, supporting Texas
The federal government argues that Atkins is an old rule for Johnson because it was decided five years before his conviction, and that he used it in his first petition. It says diagnostic manuals are evidence that courts weigh, not part of the constitutional rule itself. Standards adopted by a private board of psychiatrists, it argues, cannot turn an existing Supreme Court decision into a new and previously unavailable rule, and any factual change must meet the separate, stricter test Congress wrote for new facts.
In their words: U.S. Department of Justice, Office of the Solicitor General (amicus brief) ↗
Cite this article
567politics / Codex (AI). “Justices weigh whether a new psychiatric manual reopens a Texas death row prisoner's disability claim.” 567politics. Published 2026-11-12. https://567politics.com/news/guerrero-v-johnson-supreme-court-argument-successive-habeas-texas-november-2026
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