We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
NEITHER FISH NOR FOWL
Except in a few narrow circumstances, the Antiterrorism and Effective Death Penalty Act of 1996, bars prisoners from filing a 28 USC § 2255 petition for post-conviction relief when an earlier petition has already been denied. One of these exceptions is when such a claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The other is if newly-discovered facts underlying the claim show “by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.”
State prisoners may file a similar federal habeas corpus petition under 28 USC § 2254. The standards for being allowed to file a second § 2254 or § 2255 petition are essentially the same.
Sometimes, however, the basis for the second habeas corpus is neither fish nor fowl.
In 2007, Dexter Johnson was sentenced to death for his role in a double murder. Five years before his conviction, the Supreme Court held in Atkins v Virginia that executing people with intellectual disabilities violates the 8th Amendment. At his trial, Dex’s expert concluded, however, that under the diagnostic standards at the time the defendant was close to being intellectually disabled but not quite there.
After conviction, Dex filed a 28 USC § 2254 habeas petition and argued that Atkins should extend to people with mental illness. He was denied.
But a few years after that, the American Psychiatric Association, publishers of The Diagnostic and Statistical Manual of Mental Disorders issued the 5th edition (known as DSM-5).The DSM is the bible of psychiatry, and its definitions of mental disorders – including intellectual disability – are for all intents and purposes determinative in the legal world.
The catch was this: under the DSM-4 standard (the predecessor edition), Dex fell a little to the smart side of the IQ level that marked intellectual disability. However, DSM-5 changed the standard accepted by psychiatric professionals. Under the DSM-5 standard, Dex was intellectually disabled, meaning that executing him would be unconstitutional.
The problem is that a changed medical standard is neither a new rule of constitutional law nor a new fact relating Dex. DSM-5 is not a legal decision, and Dex’s IQ remains what it was when he committed the crime. The issue, then, is whether the new standard qualifies Dex to file a second § 2254.
When Dex filed the second § 2254, the district court agreed that it was a claim that was previously unavailable. The 5thCircuit agreed. Texas came to the Supreme Court.
Last week, the Supreme Court heard oral arguments.
Justice Elena Kagan suggested that the DSM-5 effectively created “a kind of Atkins I and an Atkins II” – first, a rule barring the execution of people with intellectual disabilities, followed by a “substantive standard” defining what it means to be intellectually disabled. She described the Atkins standard as akin to a rule with a “big gap in it” where “the DSM comes and plugs it in and it becomes part of the legal standard.”
Justice Clarence Thomas asked whether, under Dex’s argument that a change in the DSM changed the Atkins holding, “Does Atkins ever stop being a new rule?” Schepers responded that Atkins “remains new now.”
Writing in SCOTUSBlog, Nora Collins said, “Perhaps the most noticeable takeaway from oral argument was how subdued the justices were. The chief justice did not ask any questions, and no justice appeared to take up Johnson’s request in his brief that the court” DIG the case. A DIG would make the 5th Circuit decision in Dex’s favor final.
Guerrero v. Johnson, Case No 25-1003 (argued November 6, 2026)
SCOTUSBlog, Justices consider when a constitutional rule is “previously unavailable” to prisoner (November 6, 2026)
Washington Examiner, Supreme Court grapples with allowing death row inmate’s second bid to avoid execution (November 4, 2026)
~ Thomas L. Root