“Previously Unavailable” Means “Possibly Meritorious”: Fifth Circuit Clarifies § 2244(b)(2)(A) in Johnson v. Guerrero

Introduction

Johnson v. Guerrero, No. 23-70002 (5th Cir. 2025) tackles a recurring problem in federal habeas practice: what makes a claim “previously unavailable” for purposes of filing a second or successive petition under 28 U.S.C. § 2244(b)(2)(A). Dexter Johnson, a Texas death-row inmate, sought to raise an Atkins v. Virginia claim—i.e., that his execution is barred by the Eighth Amendment due to intellectual disability—only after his first federal habeas petition had already failed. The State argued this new claim was barred because Atkins had been decided before Johnson’s crimes, let alone his first habeas filing.

The district court allowed the petition to proceed, relying on the Fifth Circuit’s earlier opinion in In re Cathey. The State secured interlocutory review limited to one question: can courts craft equitable exceptions to § 2244(b)(2)(A)’s strict requirements? The Fifth Circuit answers “no,” yet simultaneously re-affirms its reading in Cathey that a claim is “available” only when it had some possibility of success. In effect, the court clarifies, rather than retreats from, its precedent—drawing a sharp line between statutory interpretation and judicially created exceptions.

Summary of the Judgment

The court reviews de novo the district court’s certified order under 28 U.S.C. § 1292(b).
It declines to invent any equitable or “futility” exception to § 2244(b)(2)(A), labeling the statute’s limits jurisdictional.
However, the panel reiterates that “previously unavailable” means more than “physically possible to assert”—the claim must have had “some possibility of merit.” This interpretation, first articulated in Cathey, stands undisturbed.
Consequently, Dexter Johnson’s Atkins claim may proceed because, under evolving clinical standards and evidence, it likely had no chance of success earlier, rendering it legally unavailable at that time.
The judgment AFFIRMS the district court’s refusal to dismiss Johnson’s petition.

Analysis

1. Precedents Cited

The opinion weaves together a line of Supreme Court and Fifth Circuit cases:

Atkins v. Virginia, 536 U.S. 304 (2002) – Bans execution of intellectually disabled offenders.
Tyler v. Cain, 533 U.S. 656 (2001) – Parses § 2244(b)(2)(A), holding “made” equals “held.” Provides interpretive template for jurisdictional text.
Panetti v. Quarterman, 551 U.S. 930 (2007) – Treats § 2244(b) as jurisdictional, limiting federal courts’ power.
Bowles v. Russell, 551 U.S. 205 (2007) – Stands for the rule that courts cannot create equitable exceptions to jurisdictional statutes.
In re Cathey, 857 F.3d 221 (5th Cir. 2017) – The centerpiece precedent; recognizes a “practical unavailability” doctrine where a claim lacking any plausible merit at the time of the first petition is deemed unavailable.
In re Johnson, 935 F.3d 284 (5th Cir. 2019) – The order authorizing Johnson’s successive petition, applying Cathey and acknowledging updated clinical criteria for intellectual disability.

2. Legal Reasoning

The panel confronted two interpretive tasks:

Rejecting a “Judicial Exception.”
Pointing to Bowles, the court stresses that a jurisdictional statute admits of no free-floating equitable exceptions. Any flexibility must arise from the statute’s own terms.
Interpreting “Previously Unavailable.”
The key statutory phrase is not defined by Congress. The Fifth Circuit, following Cathey, reads it against background principles of finality and fairness: a claim is “available” only when it could realistically be litigated with at least a colorable chance of success. Because diagnostic tests and professional manuals governing intellectual disability shifted (e.g., DSM-5, Flynn Effect adjustments), Johnson’s claim had zero chances earlier; hence it was unavailable.

The court thus harmonizes strict jurisdictional language with evolving scientific and legal standards, preserving AEDPA’s gatekeeping purpose while preventing Kafka-esque outcomes for defendants whose legitimate constitutional claims were, in practical terms, impossible to win earlier.

3. Impact

Standard Cemented. Litigants in the Fifth Circuit must now show that a putative claim possessed "some possibility of merit" at the time of the first petition to be deemed previously available; mere theoretical existence is insufficient.
No Equitable Escape Hatch. Lawyers can no longer frame their failure to raise a claim as an “extraordinary circumstance” under equitable tolling to evade § 2244(b)(2)(A). The only route is fitting within the statutory text itself.
Atkins Litigation. Prisoners raising intellectual-disability claims will likely marshal evidence of evolving diagnostics and the Flynn Effect to prove earlier futility.
Broader AEDPA Guidance. Other circuits grappling with “previously unavailable” arguments may look to this decision for a balanced interpretive model that respects AEDPA’s rigidity without closing the courthouse doors to scientifically emergent claims.

Complex Concepts Simplified

AEDPA (Antiterrorism and Effective Death Penalty Act): A 1996 law limiting federal habeas petitions to promote finality. It requires court-of-appeals authorization for “second or successive” filings.
§ 2244(b)(2)(A): A subsection allowing a successive petition only when it relies on a new, retroactive rule of constitutional law that was “previously unavailable.”
Atkins Claim: An argument that executing an intellectually disabled person violates the Eighth Amendment. Requires proof of significantly sub-average intellectual functioning and adaptive deficits.
Flynn Effect: The observed rise in IQ scores over time; courts may adjust older IQ scores downward to reflect contemporaneous norms.
Jurisdictional Requirement: A legal rule that goes to a court’s power to hear a case; courts cannot waive or excuse such rules.
Equitable Tolling: A non-statutory doctrine that pauses deadlines when extraordinary circumstances prevent timely filing—unavailable against jurisdictional bars like § 2244(b).

Conclusion

Johnson v. Guerrero crystallizes two complementary propositions: (1) federal courts lack authority to craft equitable exceptions to the jurisdictional limits in § 2244(b)(2)(A); but (2) the statutory phrase “previously unavailable” inherently contains a substantive component—the claim must have enjoyed at least a plausible prospect of success to count as “available.” This dual holding preserves congressional intent while accommodating developing scientific knowledge, particularly in the sensitive area of intellectual-disability executions. Going forward, habeas litigants must meticulously establish why their newfound claims lacked any winnable footing earlier, whereas states may invoke the same standard to foreclose petitions that could have been meaningfully advanced long before. The Fifth Circuit thus strengthens the doctrinal scaffolding around successive petitions, offering clearer guidance to both courts and counsel navigating the maze of post-conviction review.