The Supreme Court will hear argument on Wednesday, November 4, in Guerrero v. Johnson, a Texas case asking whether death row prisoner Dexter Johnson may bring a second federal habeas claim that he is intellectually disabled and so cannot be executed.
The case, No. 25-1003, was granted in June. Texas, through the director of its prison system, Eric Guerrero, is appealing a Fifth Circuit ruling that let Johnson's claim go forward. The United States filed a brief supporting Texas, SCOTUSblog reported.
The crime and the conviction
Johnson was convicted of capital murder in 2007 and sentenced to death for the June 2006 killings of Maria Aparece, 23, and Huy Ngo, 17. According to the state's merits brief, Johnson and accomplices kidnapped the couple at gunpoint, he raped Aparece, and both victims were shot in the head in a wooded area. Protasio Aparece filed a friend of the court brief supporting Texas.
The legal question
A 1996 federal law, the Antiterrorism and Effective Death Penalty Act, sharply limits second habeas petitions. One exception allows a new claim that "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." The fight is over the words "previously unavailable."
The rule here is Atkins v. Virginia, the 2002 decision barring execution of people with intellectual disability. Texas says Atkins was plainly available to Johnson. It was decided four years before the crime and long before his first federal petition. In the state's words, his claim relies instead "on a new factual predicate," the American Psychiatric Association's DSM-5 manual, published in May 2013, and that kind of claim must meet a different and stricter test that his does not.
Johnson's lawyers answer in their brief that a rule is not "available" if a claim under it had no chance. Under the older diagnostic approach, they argue, IQ scores were treated as decisive, and his own trial expert said he was not intellectually disabled "even though he found that Mr. Johnson functioned intellectually like a ten-year-old." They write, "Mr. Johnson did not change," and what changed was "the framework that made Atkins capable of protecting him."
Our timeline: from Atkins to argument day
2002: The Supreme Court decides Atkins.
June 2006: The killings. Johnson is convicted and sentenced to death in 2007.
At trial: The defense expert puts Johnson's IQ between 74 and 88 and finds him not intellectually disabled.
May 2013: The DSM-5 is published, placing less weight on IQ scores and more on everyday functioning.
2017 and 2018: The Supreme Court rejects Texas's old standard in Moore v. Texas, and Texas's top criminal court then adopts the DSM-5.
April 2019: A new expert measures Johnson's IQ at 70 and diagnoses mild intellectual disability. Texas disputes that expert's methods.
August 8, 2019: One week before his rescheduled August 15 execution date, Johnson asks the Fifth Circuit for permission to file. It agrees.
July 2025: The Fifth Circuit affirms. The full court later declines to rehear the case by a 9 to 7 vote.
November 4, 2026: Argument.
By our arithmetic, the gap between the trial expert's lowest score and the 2019 score is 4 points, and the gap between Atkins and the DSM-5 is about 11 years. Texas says the second number is the one that matters, because the law, not the science, has to change. Johnson says the first one shows why the science mattered.
Why it reaches beyond one case
Dissenting from the denial of rehearing, Fifth Circuit Judge James Ho wrote, "Atkins isn't a new rule of constitutional law. It's a decades old decision, issued years before Johnson brutally murdered Maria Aparece." Texas warns that the Fifth Circuit's reading would let prisoners reopen cases whenever a professional manual changes. Johnson's side says the door is narrow. Only two prisoners have ever passed the Fifth Circuit's threshold, his brief says, "and neither has yet obtained habeas relief." The same words also govern federal prisoners' second motions, so a ruling will reach well past Texas. A decision is expected by the end of the term.
For another recent fight over who may be executed and how, see Christa Pike Speaks a Month After Tennessee's Failed Execution as the Law on a Second Attempt Looms, and for a death sentence undone by a governor, read Alabama Governor Spares Toforest Johnson From Execution Over Evidence Doubts.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
