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Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division v. Dexter Johnson
Paid petition · United States Court of Appeals for the Fifth Circuit, No. 23-70002 · judgment July 23, 2025
Before the decision, modestly above the 4.1% base rate. The model weighted this up for a Fifth Circuit decision below, counsel with five or more prior petitions here, and a state or local-government petitioner.
Question presented
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) prohibits successive habeas applications by state prisoners with only narrow exceptions, including for claims that "rel[y] on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2244(b)(2)(A). Near-identical language allows federal prisoners to file a successive habeas motion that contains "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Id. § 2255(h)(2). The courts of appeals are divided over whether claims rely on "a new rule ... that was previously unavailable" when a claim based on the rule could have been raised in an earlier federal habeas petition but would not have succeeded. The Eleventh and Fourth Circuits hold that whether a claim would have been meritorious does not affect whether the rule was previously available. In the decision below, the Fifth Circuit adhered to its view (and that of the Ninth Circuit) that a claim was previously available only if it had "some possibility of merit" based on the evidence available to the petitioner at the time of an earlier petition. The question presented is: 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.
Counsel of record
For petitioner
William Robert Peterson
Office of the Texas Attorney General
For respondent
Jeremy Don Schepers
Office of the Federal Public Defender NDTX
Case
Conference history
Distributed for 3 conferences
Amicus briefs
1 cert-stage · 3 merits
(3 supporting pet./neither)
Proceedings
- Aug 27 2026CIRCULATED
- Aug 24 2026Record requested from the United States Court of Appeals for the Fifth Circuit.
- Aug 13 2026Motion to extend the time to file respondent's brief on the merits is granted and the time is extended to and including September 18, 2026.
- Aug 11 2026SET FOR ARGUMENT on Wednesday, November 4, 2026.
- Aug 07 2026Motion for an extension of time to file respondent's brief on the merits filed.
- Aug 06 2026Brief amicus curiae of United States filed.
- Aug 06 2026Brief amici curiae of Louisiana, et al. filed.
- Aug 06 2026Brief amicus curiae of Protasio Aparece filed.
- Jul 30 2026Brief of petitioner Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutes Division filed.
- Jul 30 2026Joint appendix filed.
- Jun 15 2026Motion for leave to proceed in forma pauperis filed by respondent GRANTED.
- Jun 15 2026Petition GRANTED.
- Jun 08 2026DISTRIBUTED for Conference of 6/11/2026.
- Jun 01 2026DISTRIBUTED for Conference of 6/4/2026.
- May 12 2026DISTRIBUTED for Conference of 5/28/2026.
- May 08 2026Reply of petitioner Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutes Division filed. (Distributed)
- Apr 24 2026Motion for leave to proceed in forma pauperis filed by respondent Dexter Johnson.
- Apr 24 2026Brief of respondent Dexter Johnson in opposition filed.
- Mar 25 2026Amici brief of Louisiana, et al. not accepted for filing. (To be resubmitted - March 30, 2026)
- Mar 25 2026Brief amici curiae of Louisiana, et al. filed. (Resubmitted)
- Mar 06 2026Motion to extend the time to file a response is granted and the time is extended to and including April 24, 2026.
- Mar 04 2026Motion to extend the time to file a response from March 25, 2026 to April 24, 2026, submitted to The Clerk.
- Feb 19 2026Petition for a writ of certiorari filed. (Response due March 25, 2026)