Supreme Court to Consider Successive Habeas Claim in Capital Case, Twenty Years After the Murder

On Wednesday this week, the Supreme Court will hear oral argument in Guerrero, Director of the Texas Department of Criminal Justice v. Dexter Johnson. It is a capital case involving the kidnapping, rape, and murder of Maria Aparece that Johnson committed in 2006. The case does not involve any claim Johnson is innocent of these heinous crimes, but rather how to interpret provisions in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

AEDPA prohibits successive habeas applications by state prisoners with only two 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). The question presented seems to answer itself. The Supreme Court has granted cert to decide whether 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” when the Court announced the rule before the filing of the prisoner’s prior federal habeas petition. As Texas persuasively argues in its merits brief, Johnson’s Atkins claim (that he should not be executed because, he claims, he is borderline intellectually disabled) does not rely on any new rule of constitutional law. The Court decided Atkins v. Virginia in 2002—long before Johnson filed his initial federal habeas application, before his conviction became final on direct review—and even before he committed the capital murder for which he was sentenced to death.

Instead of a change in law, Johnson’s claim relies on a new factual predicate: the publication of a new diagnostic manual by the American Psychiatric Association (the DSM-5), under which he was diagnosed with an intellectual disability. But a claim in a successive application based on a new factual predicate must satisfy § 2244(b)(2)(B), which Johnson’s Atkins claim does not, because his new evidence has no bearing on whether the jury would have found him “guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii).

Surprisingly, a Fifth Circuit panel accepted Johnson’s argument that he could pursue relief on this “new” claim. And the Fifth Circuit en banc denied further review by a vote of 9-7. Judge Ho (joined by Judges Jones, Smith, and Engelhardt) wrote a dissent from this denial, pointing out that “[e]xtraordinary delays like this are, alas, extraordinarily commonplace in our criminal justice system. And they are far from costless. Never mind the expense to the taxpayer. Such delays also force the family and friends of victims like Maria Aparece to wait for justice—for over two decades, in this case.”

I have filed an amicus brief in the case, along with counsel of record Allyson Ho and her colleagues at Gibson Dunn, Brad Hubbard, Matt Scorcio, Brandon Wolf, and Marquan Robertson. Our brief provides a fuller account of the cost to victims’ families—such as the Aparece family—who must wait for justice in capital cases like this one. Here’s the introduction to our brief:

Twenty years ago, in the early-morning hours of Father’s Day 2006, Dexter Johnson abducted 23-year-old Maria Chrisalee Lopez Aparece—”Sally” to her family and friends—and her boyfriend, Huy Ngo, at gunpoint. After terrorizing them, Johnson raped Sally in the back seat of her car while his accomplice taunted Ngo. Johnson then marched Sally and Ngo into the woods, shot each of them in the head, and left them for dead. Johnson and his accomplices then took Sally’s car joyriding and used her credit cards to fund a shopping spree. Earlier that evening, Sally had been at home making a card for her father, Protasio Aparece, while he worked a sixteen-hour shift as a registered nurse. After her murder, Sally’s family found the unfinished card. They placed it in their living room, in front of the fireplace, alongside Sally’s ashes—where it remains today. Johnson’s vicious crimes inflicted unbearable pain on his victims and their families.

But that was just the beginning of their suffering. Johnson’s serial litigation has robbed the families of even a modicum of peace or closure. It has been two decades since Johnson brutally murdered Sally, and nineteen years since a Harris County jury sentenced him to death—but justice still has not been served. This Court should vindicate crime victims’ “important interest in the timely enforcement of a sentence,” Bucklew v. Precythe, 587 U.S. 119, 149 (2019), and “powerful and legitimate interest” in “real finality,” Calderon v. Thompson, 523 U.S. 538, 556 (1998), by reversing the judgment below and ending an ordeal that has compounded the suffering of Sally’s family for over two decades.

You can read the full brief for the Aparece family here, which discusses how excessive delays (like the one in this case) break AEDPA’s promise of finality in capital cases and how research confirms that excessive delays in criminal cases harm victims’ families.

I hope the Court reverses the Fifth Circuit’s decision and brings the Aparece family one step closer to justice.