The Supreme Court has granted certiorari in the following cases involving issues of interest to capital habeas litigators:
Berry v. United States, 25-7026 (cert. petition granted Oct. 13, 2026)
Question presented:
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), an appeal may not be taken from a final order in a federal habeas proceeding unless a circuit judge or justice issues a “certificate of appealability” (COA). 28 U.S.C. § 2253(c)(1). A COA may issue only if the prisoner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, the prisoner must show that “reasonable jurists could debate” whether the petition should have been resolved in a different manner. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The question presented is:
Whether a certificate of appealability under 28 U.S.C. § 2253 should be granted where the issue that the petitioner seeks to raise on appeal has been resolved against him by binding circuit precedent but has been resolved in his favor by another circuit.
Guerrero v. Johnson, 25-1003 (cert. petition granted June 15, 2026)
Question presented:
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) prohibits successive habeas applications by state prisoners with only 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). Near-identical language allows federal prisoners to file a successive habeas motion that contains “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Id. § 2255(h)(2).
The courts of appeals are divided over whether claims rely on “a new rule . . . that was previously unavailable” when a claim based on the rule could have been raised in an earlier federal habeas petition but would not have succeeded. The Eleventh and Fourth Circuits hold that whether a claim would have been meritorious does not affect whether the rule was previously available. In the decision below, the Fifth Circuit adhered to its view (and that of the Ninth Circuit) that a claim was previously available only if it had “some possibility of merit” based on the evidence available to the petitioner at the time of an earlier petition.
The question presented is:
Whether a claim relies on a “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” when the habeas petitioner could have asserted a claim based on the rule in a prior federal habeas petition.