LIVE: Supreme Court Hears Arguments in Guerrero v. Johnson

10-03 Guerrero versus Johnson. Mr. Peterson. Thank you, Mr. Chief Justice, and may it please the court. AEDPA's restrictions on second or successive habeas applications reflect the balance struck by Congress between finality and error correction. Rather than pursue error correction at all costs, Congress chose to allow new claims in these applications only in limited circumstances that do not include changes in the diagnostic standards for intellectual disability. This court decided Atkins v. Virginia and announced the rule that the Constitution prohibits capital punishment of the intellectually disabled. Before Respondent even committed his crimes, and Respondent relied on Atkins v. Virginia in his initial federal habeas application, the rule of Atkins is not a new rule of constitutional law that was previously unavailable to him under Section 2244B2A. And Moore v. Texas, which was a legal change following Respondent's initial federal habeas application, has not been made retroactive to cases on collateral review by this court. Nor can respondent pass through the gateway of section 2244B2B, because the facts underlying his claim are unrelated to his guilt for the underlying offense. This court should defer to Congress's policy choices, correct the Fifth Circuit's interpretation of section 2244B2A, and reverse. I welcome the court's questions. Well, Mr. Peterson, would you spend a minute or two on the Fifth Circuit's reasoning on availability? Your Honor, as we read the Fifth Circuit's opinion, it focused on the availability of a claim rather than on the availability of a rule. And the Fifth Circuit might well have been right about whether or not the claim was available. Obviously, a claim has two pieces, a legal rule and a claim. What should unavailability focus on? Under the text of 2244B2A, it is the rule that must be unavailable, not the claim. And what's the source of that rule? Well, we looked both at the last antecedent modifier. That's the only reasonable modification. I believe Respondent now agrees from his merits brief that previously unavailable modifies So what role does the DSM play in that analysis? We think that any... Claim based on the DSM or based on a diagnosis under an updated DSM would be properly reviewed under 2244 B2B. These sorts of updates in scientific evidence, the NACDL amicus brief correctly explains in our view, can provide new factual predicates for claims. But the respondent here has disclaimed any reliance on 2244 B2B. And so. We see 2244 B2A and B2B as dividing a claim into two pieces. Why is the DSM a fact? Why isn't it part of the law? In other words, when Atkins was announced, we made clear that it was going to be based in large part. On psychological criteria that were developed under the DSM, you know, it was clear that it was going to evolve. It was clear that states were going to have a fair bit of flexibility in deciding how to use the DSM with respect to the rule. So we almost said in Atkins that the DSM was going to be, and other studies or evidence of a similar kind. So, why think of it as factual matter rather than the thing that provides, at least in large part, the legal standard and was contemplated in just that way? Respectfully, Your Honor, I think that became most clear following Hall v. Florida and Moore v. Texas. And keep in mind, Hall recognizes that the legal determination of intellectual disability is distinct from a medical diagnosis. So it's important to keep in mind the distinction between the DSM-5 as a scientific standard And the incorporation of that DSM into law, which occurred here in Texas following Moore v. Texas. Now, my friend hasn't raised a claim under Moore v. Texas. I think if this court had made Moore v. Texas retroactive to cases on collateral review, that's the claim that he would be bringing. He would be making essentially the same arguments, acknowledging that this is a Moore claim. But my friend says the rule he relies on as a new rule of constitutional law made retroactive to cases on collateral review is Atkins itself. Yeah, I guess what I'm suggesting is that Atkins... There's more than one Atkins rule. There were different Atkins rules in different states because different states... We articulate the standards differently, and there are different Atkins rules over time. And with respect to big changes, like the change that occurred in the DSM, you might say that there's a kind of Atkins 1 and an Atkins 2. So to sort of think of it as one Atkins rule is to misunderstand the nature of Atkins itself. Your Honor, I can certainly accept that framing, because in order for that framing to prevail, Atkins II, which I think is probably post-Moore, Texas, would itself need to be a new rule of constitutional law made retroactive to cases on collateral review by this court. Can I ask you about that? Because I guess I'm... I'm not quite sure that that interpretation of the term of art, new rule of constitutional law made retroactive, is what this statute is doing. You talked at the beginning about Congress's intent and how they were setting it up, and I suppose there is an interpretation that sees new rule of constitutional law made retroactive As a term of art that was established during the Teague Thank you. We're talking about a certain kind of new rule that is distinguished from other rules where the Supreme Court doesn't decide that they should be retroactive. If we read the statute in that way, then why wouldn't Atkins, meaning the determination that a person who is intellectually disabled cannot be executed? Why doesn't it satisfy that, and Mr. Johnson here can take advantage of it in the way that Justice Kagan suggests, because it evolves, as we understood, with new medical standards over time. Two pieces to that, Your Honor. First, I would distinguish the new rule definition from the previously available question. Which one are you relying on? I'm relying on both of them. I'm asking the court to resolve the circuit split over previously unavailable, but certainly we acknowledge that our argument is that Atkins was not a new rule with respect to Mr. Johnson. With respect to Mr. Johnson, and I guess what I'm suggesting is that the statute isn't really talking about is a new rule. New with respect to a particular petitioner that that part of the statute is just talking about the nature of this rule and is not relative to Any individual petitioner, that you get to the individual petitioner in the previously unavailable part of the statute. And I think what that would be doing is taking half of the Teague definition. Part of the Teague definition is looking at the state of the law at the time the prisoner's conviction became final on direct appeal. And then, of course, the statute 2244B2A requires that the rule have been made retroactive to cases on collateral review by this court. That makes perfect sense if the rule is. Being applied retroactively, if it is a rule that was announced by this court after the prisoner's conviction became final on direct appeal and has been being applied on collateral review. But that's the problem, which is Teague is you have to have a timing rule for Teague to avoid the very issue of retroactivity. Under Teague, announces a rule of timing to ensure that there's sort of a deadline for that. What cases is it going to apply to today? But that's not the issue here. The issue here is the use of previously unavailable. You argue that a new rule announced before a person's first habeas position can never be a new rule. That was previously unavailable. Let me give you a sample of a situation. Let's assume that we announce you can't execute someone before they're 70. Before they're 70. I'm sorry, after they're 70. That that would violate the Constitution. You would argue that a person who's 28 sentenced to death would have to bring his rule, but when he turns 70, he can't. Your Honor, I think that rule would go to the type of claim that would not be considered second or sixth. Why? Because that wouldn't be ripe until the time of execution. So this is not ripe until the time of execution. And today you're saying even if he is mentally disabled under our... The definition of mental disability that Atkins said under the DSM-5, let's assume there's no dispute that he wins under DSM-5. Why isn't it a question of rightness? Because, Your Honor, this isn't about his competence or eligibility to be executed. This is about his sentencing, the imposition of capital punishment. I don't see what the difference is. If what we have said under Atkins... You cannot execute someone who is mentally ill. We have a certain way of determining that, and it doesn't become ripe until a DSM-5 makes it ripe. Now, there's a timing issue that's separate that the court below may have dealt with right or wrong, I don't know, but put that aside. If that wasn't available during his first habeas petition, because it wasn't ripe yet, why isn't it ripe now? Your Honor, with respect to ripeness, this is, it's not a competency to be executed claim. It's about the moral blameworthiness of the defendant at the time of, excuse me, at the time of the crimes. That's why we're not looking at the... No, I mean... It's, this is... There's a distinct line of authority for Ford and Panetti claims, relating to competence to... That I understand. But we're not talking about Panetti. We're talking about a different constitutional right not to be executed if you're mentally ill. Well, but his argument is not that he has become intellectually disabled. No, he's saying, I've been mentally disabled. That's, in fact, the entire Atkins claim. And he now believes that he has a way to establish his intellectual disability. That goes to availability. We respectfully disagree, Your Honor, as we see that perhaps going to the availability of the claim, but not to the availability of the rule of Atkins, that the Constitution prohibits the imposition of capital punishment on the intellectually disabled. Justice Kagan, let me return to your question. And I think the helpful way of thinking about this is what the court recognized in Montgomery v. Louisiana, that when the Constitution prohibits a particular form of punishment for a class of persons, An affected prisoner receives a procedure through which he can show that he belongs to the protected class. So we have a substantive rule. But why are you saying that it's a modification of the procedures? It is a substantive change in who belongs in the class. Yes, it's not about... You know, evidence, right? It's not a change in what Mr. Johnson can offer to show that he's intellectually disabled. It is a substantive change in the criteria of the people who constitute that class. So first, every circuit that has recognized Moore as a new rule has treated Moore as a new procedural rule that is not retroactive. Why are you talking about Moore? I'm talking about Atkins, right? Right, Atkins says you can't execute. ...intellectually disabled. And in the context of that very case, we indicated that who qualifies as intellectually disabled is keyed to medical standards and that medical standards might vary throughout the country, it might evolve over time. I don't understand why that's characterized as a procedural... Atkins did leave the definition of intellectual disability to the states, and then even in Hall, where this court placed a greater emphasis legally on updated medical definitions, it still reiterated that the legal determination of intellectual disability is distinct from a medical diagnosis. No, I understand, but I, it's, so let me ask you this, the problem I think with your Your interpretation is that, as you said, we're supposed to be... Giving effect to the Congress's policy choices, and as I understood this set of provisions, Congress's policy choice was to give individuals one clear shot at bringing their constitutional claims. This is what the whole scheme is about. You can't bring a second or successive claim if you've had the opportunity before and you didn't do it. The way you're interpreting this, Mr. Johnson will never get that opportunity, because the criteria that makes him eligible for claiming that he's intellectually disabled came after his original habeas petition, but you're saying that because it relates to the rule that we had laid out before, he's foreclosed. And that seems like a really incongruous. What is the consequence, given Congress's policy determination in this case? Respectfully, Your Honor, I disagree with the premise of the question. I think what you articulated was essentially the common law abuse of the writ doctrine that preceded. And what we see in 2244B2 is Congress restricting the abuse of the writ, taking away opportunities. And the best way of looking at that is the limitation that we see in 2244B2B, Romanette 2. We know that Congress didn't intend to. To allow prisoners to raise any previously unavailable claim, because that limitation in Romanette 2 means that if a prisoner uncovers a new factual predicate for a claim that is unrelated to whether they would have been found guilty of the underlying offense, they do not have an opportunity to bring that claim. So we don't look at this as Congress attempting to provide a full opportunity. We look at this as Congress placing strict limitations on second or successive applications in favor of finality. Thank you, Counsel. Justice Thomas, anything? Justice Alito? When I'm thinking of availability, I'm thinking of how we define the term under the PLLRA, because for me, these two were passed essentially at the same time, and so the meaning we've given available is exactly the same meaning that the circuit gave, and it's the meaning that our precedents have given it in the PLRA. Why isn't that the precedent that we should be following? Your Honor, when I look at the PLRA, Booth versus Turner recognizes that the meaning of a phrase involving available depends heavily on what must be available. In that case, the court had to determine what it meant for a remedy to be available. I'll note that Booth rejects a futility exception under the PLRA, and Ross versus Blake, when it talks about what might make an administrative remedy unavailable under the PLRA, identifies procedural impediments to the filing of that sort of claim, the inability to take advantage of it by even asserting those sorts of arguments, not this fact that it would have been non-meritorious. Justice Kenyon? Well, there that the impediments were procedural, but Ross v. Blake talks about you run into just a dead end. You run into a brick wall. And if something makes you run into a brick wall, You know, it's not available to you. So here, it wouldn't be procedures. It would just be, this rule was of no use to me prior to the DSM-5. I was just, I was going to lose any Atkins claim I brought. So why isn't that, it's not about procedures, but it has the same connotation of, I couldn't do anything with this new rule before now. When we look at Ross, that dead-end phrase, I think the court explained it, involved officers unable or consistently unwilling to provide any relief to aggrieved inmates. I think that would be a circumstance where, for example, you might have a district clerk who would simply refuse to file a petition. Well, that would be a closer analogy to the specific facts in Ross. I agree with you there. But the idea, I think, is broader than that, and it reflects what available means, and it reflects even your own definitions of available, which is like, I couldn't use it to achieve my purposes, whatever the it is. Here, it's the new rule. And if I couldn't use this rule to achieve any of my purposes, if I was going to be laughed out of court, Then really, the rule was unavailable to me. What we would say is it was capable of being used, simply not useful. Perhaps the usage by this court in Perry v. New Hampshire, referring to constitutional safeguards available to defendants, including compulsory process. Compulsory process remains a constitutional safeguard available to a defendant, even one who doesn't have any use for it. So in this case, we think of the two pieces of a claim. The prisoner has the legal rule available to him that he can bring to court that would serve as a rule of decision. Even if he doesn't have the factual predicate for that claim, that rule is available. And that's consistent with how we see the structure of 2244B2. Thank you. Just so I understand the exact rule that you're articulating on previously unavailable, what if the new rule is announced by this court during the pendency? federal habeas. I want to be precise about what you think happens then. we think that it's a difficult question that is not presented on the facts of this case and that you don't need to address in order to resolve this case. However, we agree with the 11th Circuit's interpretation in Bolles. That's what we have consistently argued for. If a prisoner The listener can say. Even though this court announced the rule while I had an initial federal habeas petition or a federal habeas petition pending, I could not have actually brought that rule before the district court. I was not in a position to invoke that rule. I would not have been permitted to invoke it. Because it was too late in that litigation? Is that what you're suggesting? Your Honor, I think of an extreme hypothetical. If this court were to announce a new rule of constitutional law made retroactive to The case is on collateral review. The day that a district court enters final judgment, or the day before a district court enters final judgment, the court could adopt a bright-line rule based on Bannister and Rivers, but we might acknowledge that under some circumstances such as those, a prisoner would be able to say, that rule was not available to me, even though theoretically, if I had been able to amend my pending petition the day before final judgment, it would not have constituted a second or successive application. And second, we could resolve this case solely on the new rule issue without addressing previously unavailable, correct? Yes, Your Honor, you could. Now, the state's asking you to resolve it based on previously unavailable, in part because of the pending Cathy case that we have. In Cathy, Atkins was a new rule because it was announced after his conviction became final on direct appeal, and that would still leave the acknowledged split between at least the 5th and the 11th Circuit. Thank you. Justice Barrett? Picking up on Justice Kavanaugh's first question, would the state support a rule that said that whether the claim was available is measured from the time the habeas, the first habeas petition is filed? I suspect that would go a bit too far. Your Honor, certainly we would say if it was announced before the filing of the initial federal habeas application, we do agree that it would have been available. I don't think we would say that every rule announced after the filing of the initial federal habeas petition would be unavailable. This court did in Bannister and Rivers recognize that filings before the entry of final judgment during a pending federal habeas application are not second or successive. We certainly think... In the mine run of cases, a prisoner is going to be able to take advantage of a new rule announced while a federal habeas petition is pending. How would you propose, let's imagine, assume for the purposes of this question that we agree with your position, how would you recommend writing that so it fudges that issue? I think what you would write is to say the question presented in this case, and we tried to narrow it slightly in the merits brief, was to talk about this is a rule that had been announced before the filing of the petitioner's initial federal habeas application and made retroactive to cases on collateral review. We conclude... So just describing it with reference to the facts of this case. Yes, Your Honor, you could do that, and that's going to solve, we think... 99% of the cases, certainly just adopting our understanding of previously unavailable is going to avoid the problems that might result with publication of, say, the DSM-6 when new prisoners would come forward saying, I am now intellectually disabled when I wasn't previously. So at one point in this litigation, the issue was cast as a matter of a judicially created futility exception. How, if at all, do you understand the current argument about previously unavailable to differ from the futility argument? We would characterize Respondent's argument the same way. Their theory is that a claim is, as I understand the argument, it is that a rule is unavailable when a claim... Is unavailable or a claim would lack merit and a claim and it would be futile to raise that claim. So I think they still are tying in the availability of a rule to the futility of asserting a claim under that rule. Mrs. Jackson? Can I just get clarification on that one? So the rule, they say the rule is unavailable if I could not take advantage of it. And your argument in response to that is what? It's still available if it just existed. The rule was available to be used for whatever purpose the prisoner could make use of it. So as we define rule that is capable of being used, it is not necessarily useful to a particular prisoner. So the way of thinking of it here is there are two pieces of the claim. There is the legal predicate for the claim and the factual predicate. The prisoner may well have the legal rule available to him. He can always make any use of it that he wants to, and indeed respondent used that rule. In his initial federal habeas application, not the same way he's using it now, but he did rely on cite Atkins, urge a court to follow it and account for it in the arguments he was making. What he lacked at the time of that initial federal habeas application was the factual predicate. Right. So what do you do with the fact that we've sort of rejected? I noted that your brief didn't cite Panetti versus Quarterman, but the same kind of analysis came up with respect to Ford claims. This is kind of what... Justice Sotomayor was exploring with you. A Ford claim is one in which we have said that states are prohibited from executing people when they can't understand why they're being killed. And that kind of factual circumstance arises later. And the government in Ford said, too bad, you needed to make the claim originally because it was available to you because Ford existed, and the fact that you didn't have that factual predicate, you know, sorry. And we said, no, that doesn't really make sense because it doesn't enable this defendant to ever make the claim. And here, similarly, I think the same kind of thing is happening. And, Your Honor, we see those as qualitatively different. The Panetti and Ford are about the defendant's competence to be executed, which is focused on the defendant's status at the moment of execution, whereas an Atkins claim concerns the defendant's status at the time of the crime and conviction, the onset of disability, of the intellectual disability, during the developmental period. But if the standards change as to whether or not at the time of the initial conviction he was... Intellectually disabled, you're saying that doesn't matter. He didn't have the factual predicate at the relevant time. That's correct, Your Honor. If it's a change in the medical standards, if it's a change in the legal standards, then we would say that would need to be a change that's in the rule of constitutional law and they retroactive the cases on collateral review Thank you. Thank you, Counsel. Ms. Ferguson? Mr. Chief Justice, and may it please the Court. Respondent seeks prospective application of an old rule that was available when he filed his first habeas application 15 years ago. That claim does not satisfy AEDPA's bar on second or successive habeas applications. Atkins is not a new rule with respect to Respondent because it was decided five years before his conviction. He cannot seek retroactive application of a constitutional rule that existed and applied before he even committed his crimes. And the Atkins rule was previously available during his first habeas application. Atkins was the law of the land, and he used it to advance a different claim in that same application. Respondent's contrary reading, which would allow successive habeas applications any time It's time doctors change their understanding of intellectual disability. Would seriously undermine Congress's choice in AEDPA to prioritize finality over successive habeas applications spanning decades. This court should reverse. I welcome the court's questions. Do you agree with the state that we should decide this on the previously unavailable prong? I think this court could resolve it on either prong. I think it would be most helpful to address both and address the statute holistically. So just to discuss the new rule issue to begin, I think to address Justice Jackson's questions about whether new rule encompasses a concept of the sorts of rules that the court has at one time deemed a new rule that was important enough to make retroactive. I think that is inconsistent with the way this court has, in dozens of cases, described what it means for a rule to be new. It's consistently described the concept of a new rule as with respect to the particular defendant who is invoking the rule. And that's in cases both pre- and post-EDPA. You have cases pre-AEDPA like Saffel. You have cases post-AEDPA like Wharton v. Boxing. I guess I'm just a little concerned that if we That we have two timing issues in this statute. We have previously unavailable, which is particular to the petitioner, but it's not clear to me that Congress intended for the phrase new rule in the way that it exists in the other part of the statute to also do that work. Because you could end up with a situation in which you have such overlap that one part of the statute is superfluous, if we read it in the way that you're talking about. Can you speak to that? Yeah, so I think I would point to a few things. One is, for example, this court in Magwood describes subsection B2A as requiring intervening case law. And I think that puts a really fine point on it. This is not just a rule that was new. At the time it was decided, this is a rule that has intervened in the time between the individual's conviction and this application. And so that, I think, is some evidence of what the court— Do we have evidence that that's what Congress intended, that that's what they were doing in the statute? Well, I think by incorporating language that very, very closely tracks Teague, and given that Teague was describing when these rules can apply on collateral review, I think It would be exceedingly unusual for the court to use the same framework that Teague adopted, but divorce it from the rule that Teague was actually applying, which requires that it be new with respect to the particular defendant. That makes a fair bit of sense to me, Ms. Ferguson, but it still leaves sort of my alternative theory, which is, yes, we are talking about with relation to the particular defendant, but we don't have to think of Atkins, and indeed it would be wrong to think of Atkins as a single rule that we decided exactly when we decided the Atkins case, given that Atkins was very cognizant. The substantive standard for the rule was going to be supplied principally by diagnostic criteria. So if the diagnostic criteria fundamentally changes, as it did between DSM-IV and DSM-V, you basically get an Atkins II rule, and then the question with respect to that defendant would be whether that is new. Well, I think a few responses to that, Justice Kagan. One is that I think 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. Well, I suspect Congress didn't think about this one way or the other. It was not thinking about Atkins claims when it wrote this statute. And I completely agree with you that, I mean, I think that part of what you're saying is the Atkins standard is a very unusual one. So Congress wouldn't have been thinking about it. But I think that that doesn't answer the point because Congress didn't reject it either. I mean, we just have this very unusual kind of rule whose legal standard is supplied at least partly, maybe principally, by something else. And so when that something else changes, the rule changes. Sure. I think looking at Atkins, the substantive rule that Atkins announced was that individuals who were intellectually disabled at the time they committed their crime cannot be sentenced to death for that because they lack the culpability necessary to warrant execution. That rule isn't changed by the adoption of a new DSM. That is the underlying rule of Atkins. That's what Hall described the rule of Atkins as. And so the DSM updating who falls within the definition of intellectually disabled or who might be diagnosed as intellectually disabled isn't creating a new rule of constitutional law. The rule of constitutional law is the same. What is it doing? General Peterson said it was supplying a fact, but I guess I don't really see it that way. It's applying sort of the content to the new legal rule. It's like the legal rule is one with a big gap in it and understanding that something else is going to supply the content. So the DSM comes and plugs it in, and it becomes part of the legal standard, not anything to do with facts. I think Atkins, to the extent it incorporated the DSM and updated psychological understandings of intellectual disability, it also incorporated state processes for determining intellectual disability. It expressly said that states would be responsible for developing the method of determining intellectual disability, and I don't think that it would make a lot of sense for there to be an available Thank you. It had a new case, a new state Supreme Court case, for example, or even a state lower court case that changed the framework that the state was using. I think that would run contrary to the structure of the law, which is the structure of B2A, which says that it has to be a new rule of constitutional law made retroactive to cases on collateral review by this court. And I think that when the update that renders the rule available on Respondent's View is The DSM, or for that matter, some state court decision that's changing the way that a court is to assess an IQ score or a type of adaptive functioning, then that can't possibly trigger B2A because it's not a new rule of constitutional law made retroactive by this court. What if the court said so and made it prospective? What if the court said, we are announcing this rule? And in the future, if the category changes per state law, we intend for that to be applied retroactively. Would they have to just do it every time? Is your position that it only satisfies the retroactive part of the statute if the Supreme Court rubber stamps each change in the DSM? I think if the court, if this court says, Now the DSM is the governing standard. Then I think that's a procedural change, and so I don't know that that... I suppose if this court said it is retroactive anyway, then that would satisfy it. I don't think it would ordinarily be considered retroactive under the way, you know, after Edwards and the way this court conceptualizes what it means for a rule to be substantive versus procedural and therefore retroactive. But if this court expressly said... We think that the substance of an Atkins claim depends on the DSM-5, and that is retroactive, then that could be the basis for a second or successor. Ms. Ferguson, we had some questions earlier about the... What happens when a new rule is announced, made retroactive during the pendency of a first habeas petition? And I just wanted to give you, if you have any additional thoughts to what Mr. Peterson offered, a chance to do so. Yeah, so I agree with Mr. Peterson that there's no need to address the particular circumstances in this case. It's not presented by this case. But if this court wanted to wade into exactly when during the first habeas, I do think that a final judgment rule makes sense. I think that accords with this court's approach in Rivers, and it accords with the availability of, you know, habeas actions are generally for most purposes in the civil rules considered civil actions. You can amend your application once as of right. You can also amend it again if justice requires. And so in that circumstance, if this court were to announce something that really is a new rule retroactive on collateral review then that would provide Mr. Justice Marsh all that would provide an opportunity to address it on first appearance. Justice Alito, to follow up on Justice Kagan's line of questioning about the nature of the Atkins rule, would you say that the rule is that... A person may not be executed if the person has an intellectual disability that is regarded as such by medical professionals. That's one alternative. Or would you say it is that a person may not be executed if the person has an intellectual disability that can't be justified by a recognized... PURPOSES OF PUNISHMENT, PARTICULARLY RETRIBUTION AND DETERRENCE, IN WHICH CASE THE DSM WOULD BE EVIDENCE, BUT NOT PART OF THE STANDARD ITSELF. I THINK YOUR LATTER FORMULATION CAPTURES WHAT THE ATKINS EIGHTH AMENDMENT RULE WAS. JUST SO MUCH. I'M NOT ALTOGETHER SURE I UNDERSTOOD YOUR ANSWER TO JUSTICE GORSUCH. OKAY. You are taking the position that. Do you want to limit this? You said to Justice Thomas earlier that you wanted to go under both prongs, but your colleague wanted to limit this to that it can't be a new rule if it was announced before the filing of the first petition. Justice Sotomayor, our position certainly, and I understand General Peterson's position, to be that it cannot be a new rule if it was announced after, it cannot be a new rule with respect to a particular applicant, if it was announced after that applicant, before that applicant's conviction. I thought he said it differently. I took down what he said. It can't be a new rule if it was announced before filing of the first petition. You didn't say before the final conviction, because there is a final conviction the moment you file a habeas. You're trying to undo that final conviction. So I suppose I'm best speaking just for our own position. I think that it is a new rule. The timing of a new rule is defined with respect to when the particular defendant's conviction becomes final. The timing for previous availability is tied to the first habeas application. Now you're doing two different things. That makes no sense to me. And I understand the General's position, but yours makes no sense. Why would you have two different timeframes? the new rule announced before this, but not previously available until the first habeas? I think that accounts for why the statute has two different terms that both have reference to timing. So new is incorporating the concept from Teague, which is tied to the time of conviction. And then previously unavailable should be tied to the first habeas application or the immediately preceding habeas application, because we're dealing with second or successive habeas applications specifically. So the question in a second or successive is whether it could have been raised in the In the first, or the immediately preceding. And so that's how we would justify the two different timing questions, one for new rule and the other for previous unavailability. You're not unhappy with the general suggestion? I didn't understand us to be advancing different positions, but to the extent that they are. Listen to the transcript. Mr. King, Mr. Scorsese, Mr. Sparrow, Mr. Jackson, thank you, counsel. Thank you. Mr. Shepard. Mr. Chief Justice, and may it please the court. The Fifth Circuit correctly interpreted the federal successor statute. It did so according to the ordinary meaning of that statute's words. Under that interpretation, a rule is new when the case in question announced a novel legal standard. It's retroactive when this court has said so, and a claim relying on that rule is previously unavailable if it had no possibility of merit under the governing legal standard. In contrast, the petitioner in the United States asserts that a rule is available simply But existence and availability aren't the same thing. Many things exist that aren't necessarily available to us. This court's decisions in Booth and Ross strongly support the Fifth Circuit's rule here. There, this court held that available means capable of use and that it requires the possibility of some relief. Importantly in those cases, that was relief to the specific prisoner in question, not just whether the grievance system generally was capable of providing relief. Much has been discussed regarding the clinical standards of intellectual disability as being facts, and while that's certainly true in some sense, they're also facts with important legal significance. This court has described those standards as the fundamental premise of its Atkins decision. When those standards change, the Eighth Amendment's protected class potentially changes as well, and in those rare circumstances that can render a rule legally available for the first time, as it does here for Mr. Johnson. But those changes are, in fact, rare. Mr. Johnson is the only individual who has been authorized to proceed based off of the changes in 2013 in the DSM-5, and when the DSM was again updated in 2022, no one has been authorized to proceed under those changes. I welcome the Court's questions. Does Atkins ever stop being a new rule? In our view, Atkins was new at the time it was decided. We're talking about now, though. We believe that Atkins was new based off of the character of the decision in 2002, and that it remains new now. What about Marbury v. Madison? Every rule was certainly new at some point. When does it ever stop being new? Under our reading, the rule is just new based off of what this court did at the time. And then while that provision of the statute does little work, the next-prong retroactivity is a significant limiter on which rules petitioners can use to proceed under the statute. And then prior unavailability continues to narrow the field down farther. Why doesn't your definition of new just sort of render it irrelevant? It also seems very odd. In your brief, you talk about it as the ordinary meaning of new, but I was thinking kind of along Justice Thomas' lines about Marbury. I mean, when Alexander Graham Bell invented the telephone, that was new. I don't think anybody would describe the telephone as new today. It's just not how we think of the word new. We view the word new in the statute as doing very little work at the end of the day in anyone's definition. Certainly with ours, it gets wrapped into the retroactivity assessment, as I believe Justice Jackson was alluding to and questioning before. In the petitioner in the United States view, it just simply moves a different timing window that already exists. So I think all versions of new, it's doing very little work in terms of the statutory construction here. And that's because I think, right, what you're saying is that Really, we have to take the whole phrase that we don't just isolate, like, what does it mean to be new? It is a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. And those are the rare circumstances in which the Supreme Court makes an announcement and determines that this thing that it is announcing is so significant that even defendants with closed cases should be able to benefit from it. In that framing. As you say, Atkins was a new rule, and any other circumstance in the past in which the Supreme Court made that kind of announcement related to the significance of its ruling is a new rule. It's not about the timing of it, it's about the character of it. Absolutely, Justice Jackson. I think I kind of read that whole phrase, if you would, a little bit differently. It seems to me that that... Made retroactive to cases on collateral view actually works against you. If you read the whole phrase, what we're talking about is a rule that you can't benefit from unless it's been made retroactive. And why can't you benefit from it? It's because it was new as to you. It didn't exist prior to the time that you went through. through, you know, Didn't exist by the end of the direct appeals process. So, to me, that phrase that comes after it actually does suggest that we're talking about new, not in the kind of, you know, it was new when it was invented, but it was new as to you because it came later. Respectfully, Justice Kagan, we disagree with that position. We think both new and retroactivity go to the character of the rule and also to this court's decision, and then the courts look to see whether that rule was in fact available or capable of being used by the petitioner in question. When did the statute of limitations start running? I mean, because that's the other timing thing that we would think of, right? I mean, if Atkins is the relevant rule, you know, then it, it, under your conception of new, Atkins was still new. Every day was a new day, even at the time the conviction became final and the DSM-5 changed things. So what's your theory of when the statute of limitations would begin to run? Justice Barrett, we took the position in the lower court that the statute of limitations began to run with the publication of the DSM-5 Well, you invoked the factual exception as I read your petition. That's correct, we did. But now you're saying it's a matter of law. You're saying it's not a new fact. In this instance, we believe it's both, and the statute of limitations can run from the latest of the two triggers. Our position is both that the DSM-5 is a fact, but based off of the character of the rule in Atkins, it is also a part of the legal standard, which this court has tethered to the medical community's diagnostic criteria. What about the actual innocence requirement? If you want to treat it as a fact, then you have a harder road to hoe. We had also raised this issue under 2244B2B, which the Fifth Circuit rejected in the authorization decision. So, just to understand that then, you think you have both a 2A claim and a 2B claim? At the current time, Justice Gorsuch, we're... Not currently, but you think it's improper to think of cases like this as raising both a new rule of constitutional law and a new fact that can be pursued under both provisions. We had argued it under both theories, with recognition that the Fifth Circuit has foreclosed the B2B theory at the time it was presented already. I'm asking you. Your view is it's proper under both. It could potentially be proper under both, depending on how this court chooses to interpret B2B in a different case. And then, I think, oh, just I did want to get one other thing clear. Do we all now agree that the phrase previously unavailable modifies rule and not claim? We do, as does the Fifth Circuit. Multiple times in the Cathy decision. Which was the first case that the Fifth Circuit announced this rule. They referred to the previous unavailability of rules. They certainly do refer to claims being previously unavailable at other times, too. But what we think that means is that it shows that the focus is on what previously unavailable means. But here, again, the Fifth Circuit repeatedly referred to rules being previously unavailable. The amicus brief for Louisiana and the 22 states says that because medical standards are... surrounding intellectual disability are constantly evolving; your position is a recipe for eternal Atkins claims and zero finality, exactly what EDPA was intended to prevent. That's what they say. I just want to give you a chance to address that. That's incorrect. First off, for state prisoners, they get one opportunity to raise any claim, and so a prisoner Kisner could not raise a second Atkins claim under 2244. And then within 2255, while that explicit limitation has not been extended to federal prisoners, the Fifth Circuit's no possibility of merit rule would eliminate successive Atkins claims. If an individual is raising a claim under Atkins, that by definition, or at least by our definition, would be a claim with a possibility of merit. And so at the end of the day, everyone gets one opportunity to raise an Atkins claim, not an eternal sequence of them. What if there were a DSM-6? That would certainly depend on the specifics of the case, but again, if it's an individual who has raised an Atkins claim before, that would lose under the Fifth Circuit's rule, and would also lose under 2244. And of course, a person who didn't fit under 5 could bring it under 6, but if he did fit under 5, then it was previously unavailable to him when 6 came along. Precisely. were previously available to him when VI came along, right? The only person who would be able to use the DSM-VI in this scenario would be someone who's currently outside of the Eighth Amendment's protected class. Well, what if DSM-VI or VII or VIII makes smaller changes, but changes that are sufficient to provide a greater opportunity for success than was previously the situation? That would fail under the Fifth Circuit's rule. It's not a question of easier to succeed or stronger. It's only a question of whether the claim had a possibility of merit before. So someone who is intellectually disabled before but now has stronger evidence would fail under the Fifth Circuit's rule. Well, you're saying under the Fifth Circuit's rule, what do you think is right? We believe the Fifth Circuit's rule is correct and appropriately reflects this court's prior interpretation of available in Booth and Ross. Kachoo! Reprise for me the 2B2 argument on why you think the First Circuit is wrong on not considering a factual change. I think the general said that you can't succeed under 2B2 because it doesn't go to your guilt of the crime. It just makes you a class of people. Is that what the Fifth Circuit is thinking? That is. And why do you think that is wrong? The argument that we had made is that should be extended to individuals who would be essentially innocent of the underlying sentence, such as the death penalty, which the Fifth Circuit has rejected. But the argument is basically that the sentence would be illegal for the intellectually disabled and that 2B2 should cover that zone. But again, that's been rejected by the Fifth Circuit. And that would take care of my hypothetical. Yes, Your Honor. Meaning, if you've turned 70, that's a factual change that makes you eligible. Under the General's view, or the Fifth Circuit's view, of 2B2, that factual change wouldn't entitle you to relief. I believe so, Your Honor. Regarding the new rule prong, which has been discussed some, and the potential interpretation of Teague, I would also like to point out, not only did the Congress choose not to add the language finality of conviction, we can actually see a specific intent from Congress to not adopt the Teague language, and the second prong of that statute, or of the statute, the retroactivity determination has to be made by this court, so in addition to the other arguments we've heard, we believe that there is specific congressional intent to verbatim adopt, just based off of the text of the statute itself. Anything further, counsel? Nothing further, Your Honor. Thank you, counsel. Rebuttal? Thank you, Your Honor. First, I apologize if I misspoke. We fully agree with the federal government's explanation of the timing of new rule versus the timing of previously unavailable. That new rule concerns the state of the law when the prisoner's conviction became final on direct appeal. And that previously unavailable refers to availability. In a prior federal habeas application. And fundamentally, the purpose of 2244B2 is to ask, should the prisoner be permitted to file a claim in a second or successive application? The inquiry here is what has changed from the previous federal habeas application a prisoner has filed. And we see... 2244-B2A and 2244-B2B, handling each of the possible changes. 2244-B2A allows claims to be raised based on certain limited changes in the law by this court, intervening changes in the law, new rules of law that a prisoner could not, did not exist, and could not have been raised in the initial federal habeas application. 2244-B2B allows intervening changes in the facts. There have been discussion about the extent to which the DSM is incorporated into Atkins itself. I think the hypothetical would be not necessarily a narrower DSM-6, but a much broader DSM-6. A DSM-6 that said every person with an IQ under 85 is intellectually disabled. Whether that is truly incorporated as a matter of law into the standard for intellectual disability would require a new decision from the court. Those changes to the legal standards happen in cases, as they did in Hall, as they did in Moore. And I'll point you to my friend's state writ, its record on appeal, 2420, which we think describes the circumstances perfectly. 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 v. Texas created a previously unavailable legal basis. It's very easy to see how Congress could have written the statute or this court could have decided differently in a way that would have allowed Johnson to proceed if you struck Struck a line through 2244 B2B, Romanette 2. He would be able to say, I have a new diagnosis of intellectual disability that was unavailable to me. I would like to proceed under B2B. If this court had made more retroactive to cases on collateral review, he would say, I have a claim based on more, a new rule of constitutional law. But under the law as it exists and this court's decisions as they exist, he has neither, and we'd urge the court to reverse. Thank you, counsel. The case is submitted.