The following pending petitions involve issues of interest to capital habeas litigators:
Guerrero v. Johnson, 25-1003
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.
Walters v. Coleman, 25-867
Questions presented:
1. Whether the Fourth Circuit violated the Antiterrorism and Effective Death Penalty Act (AEDPA) and the party-presentation principle by granting habeas relief based on its de novo review of the state court’s decision.
2. Whether the Fourth Circuit violated AEDPA and the party-presentation principle by granting habeas relief on a state-court judgment that was not before it.
Newberry v. Texas, 25-862
Questions presented:
Petitioner Michael Newberry was a teenager when he was convicted of capital murder on the theory that he and his co-defendant, Lilton Deon Moore, murdered the victim in the course of committing a robbery. Nearly thirty years into Mr. Newberry’s life sentence, the State of Texas—for the first time—produced the testimony Moore gave to the grand jury that the state habeas court determined “removes the aggravating element of robbery.” The court found that the trial prosecutor knowingly withheld Moore’s testimony and police statement, and that the evidence was favorable and material. Joining in Petitioner’s request for relief, the State admitted that its conduct violated Brady v. Maryland, 373 U.S. 83 (1963), and deprived Mr. Newberry of a fair trial.
Despite the agreement of the Petitioner, the prosecution, and the habeas court, the Texas Court of Criminal Appeals (TCCA) denied relief, with one judge dissenting. The TCCA’s unsigned order contains no reasoning, fails to acknowledge the State’s confession of error, and does not even cite the relevant legal standards. The questions presented are:
1. Where the Petitioner, the State, and the habeas court all agree that a conviction is unconstitutional and must be reversed, does it violate due process for a state superior court to summarily deny relief without explanation?
2. Did the prosecution violate Brady v. Maryland, 373 U.S. 83 (1963), by suppressing evidence contradicting its proof of the aggravating element distinguishing capital murder from non-capital homicide?
Alabama v. Powell, 25-848
Questions presented:
Michael Powell was convicted of capital murder for shooting a gas-station clerk, Tracy Algar, in the head during a robbery. While awaiting trial, Powell tried to frame another man by forging a confession letter. Among other things, the letter said, “I hid the gun” and “told [Powell] where to find [it].”
Powell’s counsel argued there is “doubt all over the place” because the State had “no gun.” Again: “This case is riddled with doubt” because there’s “no gun.” In rebuttal, the prosecutor responded: “[T]here is only one person in this room who knows where the gun is. One person, he is sitting over there.” Powell objected. At a sidebar, the prosecutor explained his inference based on the letter, adding: “I am not going to say he didn’t tell us.”
In context, the remark was “perfectly proper.” United States v. Robinson, 485 U.S. 25, 33 n.5 (1988). But the lower court ignored the context and held that any “direct comment” on the choice not to testify violates the right against self-incrimination under Griffin v. California, 380 U.S. 609 (1965). It added that any uncured Griffin error “requires” reversal (App.24a) despite this Court repeatedly rejecting “a per se rule” of “automatic reversal,” United States v. Hasting, 461 U.S. 499, 508 (1983) (applying Chapman v. California, 386 U.S. 18 (1967)). The Court should summarily reverse on this question presented:
1. Whether courts must reverse for Griffin error without examining a prosecutor’s comment in context and without finding prejudice.
Or the Court should grant the petition to decide:
2. Whether Griffin should be overruled.
Alabama v. Sykes, 25-847
Questions presented:
Brandon Sykes was convicted of capital murder for killing Keshia Sykes, his ex-wife. Defense counsel pursued a residual-doubt strategy, arguing that the State had “no idea how anything happened” in Keshia’s house the day she died. In rebuttal, the prosecutor agreed that he could not “know exactly what happened,” for “only two people in the world [] know what happened in that house. One of them’s dead, and the other one is sitting right there at the end of that table.” “[B]ut,” he added, “we can look at the facts in evidence.” Sykes did not object.
In context, the remark was “perfectly proper.” United States v. Robinson, 485 U.S. 25, 33 n.5 (1988). Numerous courts have allowed comments just like it. But the lower court ignored the context and held that any “direct comment” on the decision not to testify violates the right against self-incrimination under Griffin v. California, 380 U.S. 609 (1965). It added that any uncured Griffin error “must be reversed” (App.23a) despite this Court repeatedly rejecting “a per se rule” of “automatic reversal,” United States v. Hasting, 461 U.S. 499, 508 (1983) (applying Chapman v. California, 386 U.S. 18 (1967)). The Court should summarily reverse on this question presented:
1. Whether courts must reverse for Griffin error without examining a prosecutor’s comment in context and without finding prejudice.
Or the Court should grant the petition to decide:
2. Whether Griffin should be overruled.
McCarthy v. Hernandez, 25-748
Questions presented:
The Antiterrorism and Effective Death Penalty Act (AEDPA) prohibits federal courts from invalidating a state conviction unless there is both a legal error violating clearly established federal law from this Court and a determination of prejudice that defers to state-court findings of harmless error. In this case, the U.S. Court of Appeals for the Second Circuit nullified a New York jury verdict convicting respondent Pedro Hernandez of the infamous 1979 kidnapping and murder of Etan Patz, based solely on the state trial judge’s purported failure to instruct the jury in accordance with Justice Kennedy’s controlling concurrence in Missouri v. Seibert, 542 U.S. 600 (2004). The questions presented are:
1. Did the Second Circuit violate AEDPA by finding a state jury instruction invalid under Seibert, when this Court has never held that Seibert’s rule about pretrial suppression extends to jury deliberations?
2. Did the Second Circuit violate AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant’s guilt that was unaffected by the response?
Saldano v. Texas, 25-5749
filed Sept. 15, 2025
Questions presented:
In 2017 this Court held that the Briseno factors adopted by Texas Court of Criminal Appeals (TCCA) for evaluating an Atkins claim were based on superseded medical standards that created an unacceptable risk that a person with intellectual disabilities would be executed in violation of the Eighth Amendment. Moore v. Texas, 581 U.S. 1 (2017) (Moore I). On remand, the TCCA determined that Moore was not a person with intellectual disability, a determination that this Court held was erroneous in Moore v. Texas, 139 S.Ct. 666 (2019) (Moore II).
Mr. Saldaño has never before raised an Atkins claim and last sought relief in state courts in 2008. After the evaluation of experts for Mr. Saldaño and the State – represented here by the Collin County District Attorney’s Office (CCDAO) – all experts agreed that Mr. Saldaño met the criteria for IDD.
Subsequently, Mr. Saldaño argued to the TCCA that his claim met the procedural requirements of Texas Criminal Code Article 11.071, Section 5(a)(1) based on the new legal basis of Moore I and Moore II. The state court did not address any of his arguments on the merits in its ruling, and upended nearly a decade of precedent by holding for the first time that Moore I and Moore II were not a new legal basis for relief in Texas state court. Additionally, the TCCA also held that despite the unanimous agreement of experts evaluating Mr. Saldaño for Intellectual Developmental Disorder (IDD), Mr. Saldaño did not meet Article 11.071, Section 5(a)(3)’s requirements of demonstrating that by clear and convincing evidence, no reasonable jury would have failed to find him IDD.
No court has ever meaningfully considered the merits of Mr. Saldaño’s Atkins claim, nor has a court meaningfully considered the State’s concession of the procedural gateway and Mr. Saldaño’s IDD diagnosis. The questions presented are:
1. Does the TCCA’s creation of a novel and unforeseeable procedural bar in its interpretation of Article 11.071 Section 5 preclude review of Mr. Saldaño’s Atkins claim under federal law?
2. May a state-created procedural rule bar review of an Atkins claim consistent with due process where the State has conceded, as here, that the individual meets the criteria for intellectually disability and the procedural gateway necessary to allow for a merits review?