Petition for Writ of Certiorari — John Allen Rubio, Petitioner v. Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Supreme Court briefSep 18, 2025
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No. ___________
(CAPITAL CASE)
JOHN ALLEN RUBIO,
Petitioner,
vs.
ERIC GUERRERO, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
PETITIONER’S APPENDIX
Jeremy Schepers*
Supervisor, Capital Habeas Unit
Lee Kovarsky
Special Counsel
Federal Public Defender’s Office
Northern District of Texas
525 South Griffin Street, Ste. 629
Dallas, Texas 75202
214-767-2746
214-767-2886 (fax)
jeremy_schepers@fd.org
Phillips Black, Inc.
A Non-Profit Law Practice
727 E. Dean Keeton Street
Austin, Texas 78705
434.466.8257
l.kovarsky@phillipsblack.org
Counsel for Petitioner
*Counsel of record
APPENDIX TABLE OF CONTENTS
Appendix
Document Description
Appendix Page Range
App. A
The Fifth Circuit’s May 21, 2025, opinion
1-18
App. B
The district court’s April 5, 2024, order
1-97
APPENDIX A
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United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________
FILED
May 21, 2025
No. 24-70004
____________
Lyle W. Cayce
Clerk
John Allen Rubio,
Petitioner—Appellant,
versus
Eric Guerrero, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:18-CV-88
______________________________
Before Jones, Duncan, and Douglas, Circuit Judges.
Per Curiam: *
In 2010, John Allen Rubio was convicted of four counts of capital
murder and sentenced to death. Following a series of post-conviction remedy
attempts in state court, he petitioned the United States District Court for the
Southern District of Texas for a writ of habeas corpus. The district court
determined that Rubio was not entitled to habeas relief, and denied both the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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petition and a certificate of appealability (“COA”). He now requests a
COA from this court. For the reasons that follow, we DENY his motion.
I
A
The facts surrounding Rubio’s crime are especially harrowing. Rubio
and his co-defendant, Angela Camacho, were common-law partners. After a
period of living without a consistent home, Rubio, Camacho, and Camacho’s
two children moved into a house that lacked electricity or running water. 1
Soon after moving in, Rubio asked Camacho what she would do if he killed
the children; Camacho wrote it off, figuring he was joking.
Several months later, while Camacho was pregnant with the youngest
child, Mary Jane, Child Protective Services (“CPS”) removed Julissa and
John and placed them with Camacho’s mother. The couple complied with
CPS’s requirements, taking parenting classes while Rubio underwent drug
testing and obtained employment. The children were ultimately returned,
but Rubio soon lost his job and resumed his pattern of substance abuse. Mary
Jane was born soon thereafter, in January 2003.
While unemployed, Rubio earned money by washing cars and as a
“prostitute,” ECF 31-1, at 11; nevertheless, the family was short on money.
Rubio’s mother, who also was a “prostitute,” ECF 31-1, at 11, and struggled
with substance abuse, lived with them but rarely covered her share of the
rent. Tight on money, Rubio and Camacho feared eviction. To cover their
costs, Rubio’s lover, Jose Luis Moreno, would provide him with money and
_____________________
1
Julissa and John were both Camacho’s children by a previous relationship. Mary
Jane, the youngest, was the child of Rubio and Camacho.
2
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groceries.
Moreno, however, would also provide Rubio with various
addictive substances, predominantly spray paint.
Despite the couple’s financial woes, the children were generally
healthy and well-nourished, as Rubio and Camacho frequently walked them
to a nearby charitable organization that provided lunch and dinner. They also
received food stamps.
One day, however, the couple received a notice that Julissa’s food
stamp benefits would be terminated due to issues with her social security
number.
In March 2003, on the day before the murders, the hospital
informed the couple that it could not provide the necessary records to the
government to remedy the issue with Julissa’s records.
As they bussed home from the hospital, Rubio began proclaiming that
everybody surrounding them wanted to hurt them, despite Camacho’s
assessment that the area was generally safe. Rubio claimed that a lady at the
bus stop wanted to steal his money, and that a young girl on the bus who
offered a piece of candy to John had poisoned the gift. When they exited the
bus, a “woman with dark marks on her forehead” allegedly gestured rudely
to Camacho, which Rubio identified as “the devil’s sign.” Frightened, they
hurried home.
Upon return, Rubio swept an egg over Julissa and cracked it into a
glass of water. Examining the glass, he determined that someone had “done
something evil to Julissa.” In fear, the couple considered relocating to a
motel for the evening, but they could not locate Rubio’s wallet. They
ultimately concluded that an acquaintance had stolen it. Unfortunately, the
wallet contained that month’s rent, which was due the next day.
At approximately 2:00 a.m., Rubio’s mother returned home. Rubio
requested that she provide her share of the rent, but she, too, was without
money. He then asked his mother, whom he believed to be a witch, to fight
3
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off the children’s evil spirits, but she declined. Instead, she informed him
that he had the power to fight off the spirts, and that he would need to use it.
She left the house at 3:00 a.m.
Rubio subsequently nailed the back door shut “to keep bad spirits
from entering the apartment.” He killed the family’s pet hamsters with a
hammer and bleach because he believed them to be possessed, and began
speaking about the anti-Christ and an impending battle between good and
evil. 2
Later that day, Rubio determined that the children were possessed
and that he would kill them. After ordering Camacho into the bathroom, he
decapitated their two-month-old child, Mary Jane, and then requested
Camacho’s assistance. He placed Julissa, who was struggling mightily, on
the floor next to Mary Jane’s body and ordered Camacho to hold Julissa’s
legs while he stabbed and decapitated her.
Rubio washed the girls’ bodies and put them into trash bags. He told
Camacho to clean the carpet and knife while he placed the girls’ heads into a
bucket in the kitchen. Rubio then claimed that John still had evil energy; he
and Camacho restrained him, and Rubio decapitated him as well. Following
the murders, he forced Camacho to engage in sexual intercourse with him
under threat of gang rape, and the pair showered.
Rubio’s brother arrived at the house shortly thereafter and called the
police. Rubio surrendered, stating: “[J]ust arrest me I know I did something
bad but I rather my children be dead than be possessed.” Camacho provided
three police statements corroborating Rubio’s account, with some minor
_____________________
2
Camacho later testified that Rubio only ever acted abnormal when he inhaled
spray paint. However, Camacho claimed that Rubio had not used spray paint for the
previous five days.
4
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timeline inconsistencies. The State charged Rubio with four counts of capital
murder.
B
Rubio underwent two separate trials. He was convicted and sentenced
to death in the first, in large part based on out-of-court statements made by
Camacho, who was unavailable as a witness during trial after invoking her
Fifth Amendment right against self-incrimination. After that trial, however,
the Supreme Court issued Crawford v. Washington, 541 U.S. 36 (2004), which
altered Confrontation Clause jurisprudence.
Rubio’s conviction was
consequently overturned. He was re-tried, convicted, and sentenced to
death. He appealed, and his conviction was affirmed.
In October 2013, Rubio petitioned for a writ of habeas corpus in state
court. In August 2016, the state habeas court held an evidentiary hearing,
following which Rubio filed a supplemental habeas application that raised
four more grounds. In April 2017, the state habeas judge issued findings of
fact and conclusions of law regarding the merits of the original 2013 petition,
recommending that the Texas Court of Criminal Appeals (“TCCA”) deny
the relief requested. The judge also found that the 2016 supplemental
application was a subsequent application and directed it to the TCCA.
Ultimately, the TCCA denied the 2013 habeas petition and found that the
2016 supplemental habeas petition was an abuse of the writ because it did not
qualify under the state’s successive petition law.
In September 2019, Rubio filed a petition for writ of habeas corpus in
federal court and amended it five months later, raising ten claims. Only one
of those claims, however, had previously been presented to the state courts,
so the district court stayed the case to permit Rubio to exhaust his state-court
remedies by raising the other nine grounds in the TCCA. After the TCCA
dismissed his successive habeas petition as an abuse of the writ, he submitted
5
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his second amended petition to the district court. The district court denied
all grounds of relief and denied him a COA. He now moves this court for a
COA.
II
When a petitioner seeks to appeal a district court’s denial of habeas
relief, they must, pursuant to the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), make a “substantial showing of the denial of a
constitutional right” to be granted a COA. 28 U.S.C. § 2253(c)(2). This
requirement is jurisdictional: the appeal may not be taken without its
issuance. Id. § 2253(c)(1).
To demonstrate the violation of a constitutional right, the petitioner
must satisfy § 2253(c)(2), which requires them to “show that reasonable
jurists could debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). And, where the claim is disposed of on procedural grounds, the
petitioner must demonstrate “that jurists of reason would find it debatable
whether the petition states a valid claim on the denial of a constitutional right,
and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack, 529 U.S. at 478.
When the petitioner seeks a COA on claims denied on the merits by
a state court, § 2254(d), as amended by the AEDPA, “imposes a highly
deferential standard for evaluating state-court rulings and demands that
state-court decisions be given the benefit of the doubt.” Hardy v. Cross, 565
U.S. 65, 66 (2011) (per curiam) (quoting Felkner v. Jackson, 562 U.S. 594, 598
(2011) (per curiam)). Our review is “limited to the record that was before
the state court that adjudicated the claim on the merits, . . . [and] requires an
6
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examination of the state-court decision at the time it was made.” Cullen v.
Pinholster, 563 U.S. 170, 181–82 (2011). Under 28 U.S.C. § 2254(d), we will
not grant a petition for a writ of habeas corpus with respect to a claim
adjudicated on the merits in state court, unless that adjudication (1) “was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” or
(2) “resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(1)–(2).
III
Rubio seeks a COA on the following overarching grounds:
(1) ineffective assistance of counsel for failure to reasonably investigate his
prenatal exposure to alcohol; (2) ineffective assistance of counsel for failure
to investigate and prepare his insanity defense; and (3) violation of his due
process rights under Napue v. Illinois, 360 U.S. 264 (1959), by solicitation of
false testimony. Because “[n]o reasonable jurist could find the district
court’s assessment [of the Strickland issue] debatable or wrong,” Brewer v.
Lumpkin, 66 F.4th 558, 565 (5th Cir. 2023), we deny his COA. See Slack,
529 U.S. at 484.
A
Rubio first requests a COA for his claim of ineffective assistance of
counsel for failure to investigate his prenatal alcohol exposure. Because he
preserved this issue during state-court habeas proceedings, § 2254(d)
controls. The relevant “analysis includes layers of deference to both trial
counsel and the state court, rendering it ‘doubly deferential.’” Holberg v.
Lumpkin, No. 21-70010, 2023 WL 2474213, at *4 (5th Cir. Mar. 13, 2023)
(quoting Cullen, 563 U.S. at 190). To prevail on the merits, Rubio must show
“that there is a reasonable probability that, but for counsel’s unprofessional
7
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errors, the result of the proceeding would have been different,” 3 keeping in
mind that “strategic choices must be respected in these circumstances if they
are based on professional judgment.” Id. (quoting Strickland v. Washington,
466 U.S. 668, 681, 694 (1984)).
The district court, considering this claim, described the relevant
information regarding fetal alcohol syndrome (“FAS”): it “is one of several
different disorders under what is now recognized as the umbrella ‘fetal
alcohol spectrum disorder.’” An individual who has fetal alcohol spectrum
disorder (“FASD”) 4 may experience mental and physical defects, including
stunted fetal growth or weight, facial dysmorphia, damaged brain structures,
or other physical damage. Rubio argues that trial counsel overlooked the
possibility that other effects associated with FASD contributed to his acts
and mental capacity, and that his counsel failed to adequately explore this
possibility.
He noted before the state court that the following red flags should
have inspired trial counsel to investigate the possibility that he suffered from
FASD: (1) his bizarre behavior; (2) testimony that his mother consumed
drugs and alcohol while pregnant; (3) Dr. Fabian’s report from 2009
signaling that Rubio’s mother’s alcohol use increased prenatal risk factors;
(4) Dr. Pinkerman’s report identifying prenatal alcohol abuse; (5) a letter
from Dr. Brams linking developmental issues to his parents; and (6) reports
_____________________
3
In other words, Rubio must demonstrate “(1) that his trial counsel rendered
deficient performance, and (2) that the deficient performance resulted in actual prejudice.”
King v. Davis, 883 F.3d 577, 586 (5th Cir. 2018).
4
FASD “is a non-diagnostic umbrella term that encompasses all four of the
diagnostic categories caused by prenatal alcohol exposure that were described in the
diagnostic guidelines published in 1996 by the Institute of Medicine of the National
Academies.” Brown Report, at 41.
8
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from Drs. Martinez and Morris regarding Rubio’s mother’s drug and alcohol
abuse. 5
The state habeas court held an evidentiary hearing regarding the
effectiveness of counsel as it related to their investigation of FAS and
FASD. Rubio’s habeas counsel elicited testimony from his trial counsel, Ed
Stapleton, who explained that he chose not to pursue the FASD theory
because (1) Rubio did not have facial dysmorphia; (2) Dr. Owens’s report
proved inadequate to demonstrate brain damage; (3) Dr. Morris did not
identify a deficiency in Dr. Owens’s report; and (4) the defense was poorly
funded. At some point during the testimony, Stapleton’s trial co-counsel,
Nathaniel Perez, shouted out from the gallery that they provided Rubio
ineffective assistance of counsel. The court acknowledged the attorneys’
humility and willingness to “fall[] on the sword” but noted that they
“worked with what [they] had.”
Although the state court acknowledged counsels’ awareness of
Rubio’s mother’s alcoholic intake, it denied the ineffective assistance of
counsel claim. First, it noted that “there [was] insufficient evidence to find
that, at the time of [Rubio’s] trial . . . , the development, investigation[,] and
presentation of a full-scale FASD based defense was reasonably available to
trial counsel.”
Second, trial counsel thoroughly investigated Rubio’s
behavior, and relied on medical experts’ findings that it was inspired by
something other than FASD. Third, an argument premised on FASD is a
double-edged sword: while it may assist in mitigation, it also harms the
defendant’s position in the future danger inquiry; thus, the attorneys made a
strategic decision in determining how much to focus on FAS. Fourth, and
_____________________
5
In the present motion, he claims that the primary “red flags” come from (1) his
2003 trial; (2) the investigation leading up to the 2010 trial; and (3) the competency hearing
before the 2010 trial.
9
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finally, Rubio failed to demonstrate that the jury would have answered the
mitigation inquiry differently.
The federal district court found that “fairminded jurists could [not]
disagree that the state court’s decision conflicts with [the United States
Supreme] Court’s precedents.” It walked through the evidence, noting that
trial counsel investigated the connection between Rubio’s mother’s
substance abuse and his behavior, including by seeking the opinions of several
experts.
Further, Rubio failed to demonstrate that any doctor ever
conclusively diagnosed him with FASD. Instead, the court noted that
Rubio’s counsel formulated a strategy reasonable at the time. It also found
that the TCCA properly considered the prejudice prong under Strickland,
and that Rubio has not demonstrated that fairminded jurists would disagree
with that conclusion.
After review of the record, we, too, find that reasonable jurists could
not disagree with the conclusion that Rubio’s trial counsel was effective. See
Dunn v. Reeves, 594 U.S. 731, 739–40 (2021) (“[A] federal court may grant
relief only if every ‘fairminded juris[t]’ would agree that every reasonable
lawyer would have made a different decision.” (second alteration in
original)). His attorneys sought the opinions of several doctors, investigated
the possibility of FAS, and, while they may have been misled by an overemphasis on the importance of facial dysmorphia, they considered the
defense to the extent they could. 6 See Rompilla v. Beard, 545 U.S. 374, 383
_____________________
6
Rubio’s motion primarily focuses on his attorneys’ misconception that facial
dysmorphia is required for FASD. It is true that Dr. Natalie Brown provided a report that
noted that “FASD tends to be a hidden condition because most people in this population
have [alcohol related neurodevelopmental disorder] rather than FAS and consequently, no
obvious physical abnormalities.” But Rubio says nothing to truly dispute the state habeas
court’s factual determination that “trial counsel conducted a thorough and detailed
investigation into the cause of [Rubio’s] bizarre behavior by retaining numerous medical
doctors and mental health experts who examined [Rubio] and opined that the cause of this
10
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(2005) (“[R]easonably diligent counsel may draw a line when they have good
reason to think further investigation would be a waste.”); Gonzales v.
Stephens, 606 F. App’x 767, 772–73 (5th Cir. 2015) (rejecting ineffective
assistance
of
counsel
claim
where
defense
counsel
secured
a
neuropsychologist who “concluded that Gonzales had no brain damage”).
Reasonable jurists could not debate that the investigation and presentation of
this defense failed to amount to the “reasonably effective assistance”
Strickland requires, especially under the strength of the double deference we
provide state-court rulings. See Dunn, 594 U.S. at 739–40. And, because
Rubio has failed to show that his attorneys fell below the Strickland standard,
we need not consider the prejudice prong. 7
_____________________
behavior was something other than FASD.” Specifically, these doctors made the
following diagnoses, potentially among others: “delusional disorder with other psychotic
features; severe learning disorder; schizophrenia, paranoid type; major depressive
disorder, recurrent; inhalant dependence; cannabis abuse; psychotic disorder NOS (not
otherwise specified); and, Attention Deficit Hyperactivity Disorder (ADHD).” Rubio
does not successfully contest these statements or demonstrate that his attorneys committed
“unprofessional errors,” Cullen, 563 U.S. at 190, especially considering that the state
court’s factual determinations are “presumed correct” unless the petitioner “rebut[s] the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
7
Rubio provides lengthy arguments in both his motion and reply brief that the
district court failed to consider § 2254(d)(2), instead premising its findings on § 2254(d)(1).
While § 2254(d)(1) precludes the grant of a petition for writ of habeas corpus unless the
state court’s determination “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” § 2254(d)(2) allows a reversal of the state court’s denial if it
“resulted in a decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.”
Rubio makes no showing that the state court, in light of all of the evidence in its
proceedings, made an unreasonable determination of facts. As described above, the federal
district court identified several facts that the state court weighed in determining that
Rubio’s counsel was not ineffective. Among these facts is that Rubio was never diagnosed
with FASD and that counsel investigated the possibility that he had FASD. While the
district court ultimately stated its conclusion under § 2254(d)(1), there is no indication that
11
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B
Rubio next requests a COA for review of his claim that his counsel
was ineffective by failing to investigate and prepare his insanity defense. 8 As
the district court noted, Rubio failed to present this claim in 2013 during his
state habeas proceedings, so the TCCA refused to consider the merits of the
claim under the state’s procedural bar. The claim is therefore procedurally
defaulted because “the last state court to review the petitioner’s claims
unambiguously based its denial on a state procedural bar.”
Mullis v.
Lumpkin, 47 F.4th 380, 387–88 (5th Cir. 2022) (quoting Gonzales v. Davis,
924 F.3d 236, 243 (5th Cir. 2019) (per curiam)). Rubio bears the burden of
demonstrating that an exception to this rule applies to be granted a COA.
See McCleskey v. Zant, 499 U.S. 467, 494 (1991), superseded by statute on other
grounds, AEDPA, 28 U.S.C. § 2244(b), as recognized in Banister v. Davis, 590
U.S. 504 (2020).
As the district court rightly pointed out, ineffective representation by
state habeas counsel may be sufficient cause to overcome the procedural bar
for an ineffective assistance of trial counsel claim. Martinez v. Ryan, 566 U.S.
_____________________
it erred in failing to proclaim the same determination under § 2254(d)(2). Indeed, Rubio’s
most direct attack is that the state habeas court improperly found that Rubio’s attorneys
were aware of red flags because one “testified under oath that the reason they abandoned
an FASD investigation was because he thought FASDs required facial dysmorphia and
Rubio had none.” But the very next sentence in Stapleton’s testimony was that, while he
believed facial dysmorphia was required, he investigated FASD until he “got Dr. Owens’s
report on Fetal Alcohol Syndrome or lack of Fetal Alcohol Syndrome.” Rubio has not
provided clear and convincing evidence that the state court erred in its factual
determinations.
8
Rubio’s motion notes that this second request incorporates Claims Three and
Seven asserted before the district court, which the court had considered under the greater
“mental health” challenges umbrella. We therefore eschew consideration of the third
claim that the district court considered in that grouping, identified as Claim One and
relating to failure to include a qualified mental health expert on the defense team.
12
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1, 17 (2012). Therefore, Rubio must satisfy the Strickland test: that trial
counsel was so deficient that they were “not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment,” thus “prejudic[ing] the
defense.” Strickland, 466 U.S. at 687. Then he must demonstrate “that
habeas counsel was ineffective in failing to present those claims in his first
state habeas proceeding.” Garza v. Stephens, 738 F.3d 669, 676 (5th Cir.
2013).
1
Rubio’s first argument under his overarching “mental health”
challenge is that his trial counsel failed to investigate and prepare his insanity
defense. He argues that his attorneys misunderstood the proper Texas legal
standard for a not-guilty-by-reason-of-insanity defense, and that they failed
to provide the proper standard to their expert witnesses.
The district court found that Rubio failed to demonstrate that his trial
counsel either misunderstood the legal standard, or that they examined
witnesses with the improper standard. It noted that Rubio raised this same
habeas challenge to the TCCA after his first conviction, which provided
Rubio’s counsel with “the benefit of the TCCA’s decision, including its
unambiguous recitation of Texas law regarding an insanity defense.” See
Rubio v. State, 241 S.W.3d 1, 9 (Tex. Crim. App. 2007) (“[The primary issue
to be resolved at trial was] whether the appellant, at the time of the conduct
charged, as a result of severe mental disease or defect, did not know that his
conduct was wrong.”); id. at 12 (Keller, J., dissenting) (noting that “wrong”
in this context means “illegal”). The court further provided excerpts of trial
testimony in which his attorney referred the expert witness to the correct
legal standard, asking that the witness “assume that there is some Texas case
13
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law that says . . . knowledge of ‘wrong’ means knowledge of ‘illegal.’” 9 And
it rejected any claim based on the fact that Dr. Morris inadvertently erred in
describing the legal standard in his expert report. 10
Considering the record, Rubio has failed to show that he has a
substantial claim, and he has pointed us to no portion of the district court’s
analysis with which fairminded jurists would disagree. 11 Because Rubio fails
_____________________
9
“It is an affirmative defense to the prosecution that, at the time of the conduct
charged, the actor, as a result of severe mental disease or defect, did not know that his
conduct was wrong.” Tex. Penal Code § 8.01(a). “Under Texas law, ‘wrong’ in this
context means ‘illegal.’” Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008).
The pertinent question, therefore, is whether “the defendant factually know[s] that society
considers this conduct against the law, even though the defendant, due to his mental
disease or defect, may think that the conduct is morally justified.” Id.
10
It is true that Dr. Morris’s expert report misstated the standard of review in its
opinion. He admitted that he “probably should have” looked more closely at that line. But
he also unequivocally stated that weeks prior to trial he came to the conclusion that Rubio
“did not know that [his action] was wrong.” Indeed, he consistently stated that he felt that
Rubio did not understand the consequences when committing the act, even though another
expert witness testified before the jury that Rubio acted “regardless of the consequences.”
11
Rubio asserts that the district court engaged in “claim-splitting” by failing to
consider all of Rubio’s allegations under this claim cumulatively. There is no evidence that
the district court failed to consider the evidence under the totality of the circumstances.
While the district court singled out several allegations, it noted that none was significant,
and they deserved little weight given Rubio’s “limited attention” provided to them and
their lack of relation “to the main thrust of his claim.”
Finally, to the extent that he challenges the district court’s prejudice
determination, the district court rightly emphasized that the jury had heard evidence
demonstrating Rubio’s knowledge of the wrongfulness of his action; he failed to show that
he would have been found not guilty with the “proper” legal standard. For instance, Rubio
instantly surrendered to officers, telling them to “just arrest” him because while he
“kn[ew] [he] did something bad,” he “rather[ed] [his] children be dead than be
possessed.” He also informed officers in a statement that he “told [his] wife that [they]
should make love for the last time because [they] were going to jail.” Moreover, Camacho
testified that Rubio planned to flee to Mexico; Rubio asked the detective, “I killed the
children, what more do you need?”; he purchased cleaning supplies in advance of the
murders; and Dr. Morris, when asked about Rubio’s “arrest me” statement, said that he
14
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to make this showing, we do not consider whether he can clear the procedural
default.
2
Rubio’s other mental-health-based challenge surrounds the failure to
introduce medical records from his time spent in prison, which he contends
demonstrate his mental illness.
He believes that such evidence could
controvert other testimony that showed that Rubio was not on antipsychotic
medication while incarcerated.
As with the legal standard claim, the district court found that Rubio
failed to clear the substantial claim hurdle. Instead, the court found that his
trial counsel possessed the prison records and had to balance a “mixed bag”
of double-edged evidence: while he may have been prescribed the
medication, he often refused to take it. Further, the records demonstrated
that Rubio’s odd behavior was often self-reported and an atypical form of
psychosis, all of which were reviewed by the relevant expert witness. The
district court concluded that counsels’ “decision not to utilize [the records]
falls within the type of reasonable strategic decisions of trial counsel.”
Having reviewed the briefing and the record, Rubio has failed to show that
his attorneys fell below the Strickland standard.
Because “[n]o reasonable jurist could find the district court’s
assessment debatable or wrong, Brewer, 66 F.4th at 565, we deny his motion
for a COA as to this claim. See Slack, 529 U.S. at 484.
_____________________
“think[s] that . . . you have to consider [it] a possibility” that such a statement is an
“indication that [Rubio] knew what he had done was wrong.” See Ex Parte Rubio, No.
65,784-04 and No. 65,784-04, 2018 WL 2329302, at *2 (Tex. Crim. App. May 23, 2018).
While he may have considered his actions “morally justified,” he also clearly knew that
“society considers this conduct against the law.” Ruffin, 270 S.W.3d at 592.
15
App. A. 15
Case: 24-70004
Document: 62-1
Page: 16
Date Filed: 05/21/2025
No. 24-70004
C
As to the district court’s umbrella category of “expert witnesses,”
Rubio only requests a COA for his Napue claim that the State knowingly
elicited false testimony from Dr. Michael Welner. As with his mental health
claims, Rubio’s petition before the state habeas court regarding his Napue
claim was dismissed as an abuse of the writ, and it is therefore procedurally
defaulted. Once again, because he fails to make a substantial claim, we do not
reach the procedural default issue.
Underlying this claim is the testimony of State rebuttal witness Dr.
Welner, a forensic psychologist who had interviewed both Rubio and those
who knew him.
Dr. Welner interviewed Rubio for fourteen hours
approximately one month before his re-trial. Rubio v. State, No. AP-76,383,
2012 WL 4833809, at *11 (Tex. Crim. App. Oct. 10, 2012). He determined
that Rubio did not suffer from a severe mental disease at the time he
committed offense because (1) there were several instances of Rubio’s
alleged delusion that were undercut by his statements or actions, 12 and
(2) while he did not consistently take anti-psychotic medications, he also did
not generally demonstrate symptoms.
Rubio, however, contends that the State knew (or should have known)
that Dr. Welner provided false testimony when he claimed that (1) Rubio
failed to take his anti-psychotic medication and (2) his absence of symptoms
of psychosis during that time suggested that he lacked the alleged mental
_____________________
12
For instance, before ever claiming that he committed the murders “because he
was the ‘chosen one,’” he asserted that he did so because Camacho instructed him to.
Rubio, 2012 WL 4833809 at *11. He told the officers he almost called the police right after
the offense, and he deflected responsibility onto Camacho rather than immediately
confessing. Id. He also allegedly recognized Julissa when he killed her, inconsistent “with
his professed delusion that his deceased grandmother had possessed [her].” Id.
16
App. A. 16
Case: 24-70004
Document: 62-1
Page: 17
Date Filed: 05/21/2025
No. 24-70004
health disorder. As with the mental health ineffective assistance of counsel
claim, he asserts that his medical records from the jail show that he reported
his hallucinations and delusions while incarcerated. This, he claims, proves
that Dr. Welner’s testimony was false.
For Rubio to succeed on such a claim, he “must show that the
prosecution knowingly solicited false testimony or knowingly allowed it ‘to
go uncorrected when it appear[ed].’” Glossip v. Oklahoma, 145 S. Ct. 612,
626 (2025) (quoting Napue, 360 U.S. at 269). The district court properly
determined that the record did not support a conclusion that Dr. Welner
falsely testified. As it explained, the record demonstrated Rubio’s refusal to
take prescribed medication and his feigned symptoms of mental illness.
Indeed, Dr. Welner testified about several reasonable explanations for
Rubio’s reported hallucinations other than insanity, and described how some
of his behaviors were inconsistent with insanity. To the extent that Rubio
challenges that conclusion, he does not provide any evidence that shows that
it was improper.
Instead, much of the evidence is self-serving or
inconclusive. One record to which he points us notes “[patient] reports
medication compliance.” Another notes that “[h]e stated that he has been
on meds for ‘years.’” Yet another merely notes the various medications that
he was prescribed, none of which appear to actively treat schizophrenia or
psychosis. While it is true that one record from 2006 notes his “strong meds.
compliance,”
including
by
taking
Chlorpromazine—which
treats
schizophrenia—in fifty-four out of sixty relevant instances, this single
medical record is insufficient to overcome the wealth of other evidence that
supports Dr. Welner’s statement. Further, the district court found that the
statements were not material and that Rubio failed to show that the State
17
App. A. 17
Case: 24-70004
Document: 62-1
Page: 18
Date Filed: 05/21/2025
No. 24-70004
knew it elicited false testimony. 13 Rubio has failed to demonstrate that
Welner’s testimony violates Napue.
IV
For the reasons described above, Rubio has failed to demonstrate that
any of his claims merit the grant of a COA and further review of the district
court’s opinion. Accordingly, his motion for a COA is DENIED.
_____________________
13
There is not a “reasonable likelihood [this statement] [could] have affected the
judgment of the jury.” Glossip, 145 S. Ct. at 626–27 (second alteration in original) (quoting
Giglio v. United States, 405 U.S. 150, 154 (1972)). This statement merely provided the jury
one of several reasons that Dr. Welner did not believe Rubio suffered from psychosis. Nor
was Dr. Welner a “star witness” for the prosecution, as was the case in Glossip, because
other sources introduced substantial evidence of Rubio’s sanity. See id. at 623; id. at 634
(Barrett, J., concurring in part and dissenting in part). The State elicited testimony from
one of Rubio’s fellow inmates, Jose Luis Gutierrez, that Rubio stated “[t]hat his attorney
had tell [sic] him not to pass the IQ test so he can get insane - - not insane, or insane. He
was trying to plea he was crazy.” Another inmate, Rolando Garza, later testified that he
overheard Rubio telling Gutierrez “that he was going to say that he was insane.” When
Garza “told [Rubio] he wasn’t crazy or insane,” Rubio “shushed him and said, yeah, but
they don’t know that.” These statements were corroborated by others. Before his
incarceration, Rubio had told a friend that he “kn[ew] how to commit the perfect crime;
just say you are insane.” This testimony, among other evidence, casts doubt that, even if
there were a Napue violation, it “prejudiced the defense.” Id. at 629.
18
App. A. 18
APPENDIX B
Case 1:18-cv-00088 Document 94 Filed on 04/05/24 in TXSD Page 1 of 97
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
JOHN ALLEN RUBIO,
Petitioner,
VS.
BOBBY LUMPKIN,
Respondent.
§
§
§
§
§
§
§
§
§
April 05, 2024
Nathan Ochsner, Clerk
CIVIL ACTION NO. 1:18-CV-088
ORDER AND OPINION
In 2010, John Allen Rubio was sentenced to death for killing his three young children.
After unsuccessfully availing himself of Texas appellate and post-conviction remedies, Rubio now
petitions for federal habeas corpus relief. Having considered the extensive record and the
applicable law, the Court finds that Rubio has not shown an entitlement to the relief he requests.
I.
Background
A. The Crime
On March 11, 2003, Rubio murdered and decapitated his three children: Julissa Quesada
(age three), John E. Rubio (age fourteen months), and Mary Jane Rubio (age two months). Rubio
was Mary Jane’s biological father, and the step-father of Julissa and John. Rubio’s common law
wife and co-defendant, Angela Camacho, was the mother of all three children.
In the resulting trials, neither the State nor Rubio disputed the basic facts surrounding the
disturbing crime. They did, however, hotly debate why Rubio committed the unspeakable acts.
Rubio claimed that he killed the children because mental illness caused him to believe that they
had been possessed or enchanted by witchcraft; the State argued he killed them because of
financial stress exacerbated by the impending end of government assistance.
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The Texas Court of Criminal Appeals (“TCCA”) effectively summarized the facts based on
the trial record:
Camacho and [Rubio] began dating after she left Julissa’s father, who beat her. She
was pregnant with John at that time. Initially they lived in an apartment with
[Rubio’s] mother and brothers, but when that arrangement ended, they began
living on the street. John was born in January 2002. They eventually moved into a
house that had no electricity and no running water. During this period, [Rubio]
once asked Camacho what she would do if he killed the children. She did not
answer him because she thought that he was joking.
In the summer of 2002, Child Protective Services (“CPS”) removed Julissa and
John from the home and placed them with Camacho’s mother. Camacho was
pregnant with Mary Jane at that time. In order to get Julissa and John back,
Camacho and [Rubio] had to take parenting classes and find adequate housing,
and [Rubio] had to obtain employment and submit to periodic drug testing for
several months to show that he was no longer using drugs. They did all these
things, and CPS returned Julissa and John to the couple in the fall of 2002.
However, [Rubio] soon lost his job and resumed his substance abuse. [Rubio] was
still unemployed when Mary Jane was born in January 2003.
[Rubio] washed cars and prostituted himself to make money, but they had trouble
coming up with enough money to take care of the family. [Rubio] and Camacho
shared their apartment with [Rubio’s] mother and two men who were acquainted
with [Rubio’s] mother. However, [Rubio’s] mother, who was a prostitute and drug
addict, often failed to pay her share of the rent. [Rubio] and Camacho frequently
feared that they would be evicted.
[Rubio] had a male lover, Jose Luis Moreno, who sometimes provided [Rubio] with
money and groceries. Moreno also occasionally supplied [Rubio] with spray paint,
which [Rubio] inhaled to get high, and Camacho would throw the cans away when
[Rubio] brought them into the apartment. Although Camacho was upset by this
situation and sometimes threatened to leave [Rubio] if he did not end his affair
with Moreno, she also understood the value of Moreno’s material assistance to the
family.
[Rubio] and Camacho were under significant stress, but their children were
generally healthy and well-nourished. [Rubio] and Camacho usually walked with
the children to a nearby charity that served lunch and supper Monday through
Friday and lunch on Saturday. They also received benefits from the Women,
Infants, and Children (“WIC”) Program and food stamps.
Shortly before the offense, [Rubio] and Camacho received a notice informing them
that Julissa’s food stamp benefits would be terminated because of a problem with
her social security number. On the day before the offense, the family went to the
hospital to get a copy of Julissa’s records. The hospital did not provide them with
the records that they needed to correct the problem.
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While they were taking the bus home from the hospital, [Rubio] started talking to
Camacho about how everyone around them was trying to hurt them. Camacho had
not observed him having any problems with people on the bus before. [Rubio] told
Camacho that a woman they saw waiting at the bus stop wanted to steal his money.
A little girl on the bus offered a piece of candy to their son, John, but [Rubio] would
not let John accept it because he thought it might be poisoned. After they got off
the bus, a woman with dark marks on her forehead made a rude gesture toward
Camacho, and [Rubio] told Camacho that that was the devil’s sign and they needed
to hurry home. Camacho believed him and began crying as they grabbed the
children and ran.
Once they got home, [Rubio] “swept” an egg over Julissa and cracked it into a glass
of water. After looking at the results, [Rubio] said that someone had done
something evil to Julissa. Camacho was so scared that she was not able to sleep
that night, and she did not think that [Rubio] slept, either. They were so frightened
that they considered taking the family to a motel, but they could not find [Rubio’s]
wallet. [Rubio] and Camacho believed that an acquaintance who had been in the
apartment earlier that day had stolen it. [Rubio’s] missing wallet also contained
their share of the month’s rent, which was due the next day.
Around 2:00 a.m., Camacho was in the bedroom when she heard [Rubio’s] mother
coming into the apartment. [Rubio] asked his mother for her share of the rent, and
his mother told him that she did not have it. [Rubio] also asked his mother, whom
he believed was a witch, to help him fight off the evil spirits, but his mother did not
want to help. She told [Rubio] that he had the power and he was the one who
would have to use it. She left the apartment around 3:00 a.m.
[Rubio] nailed the back door shut to keep bad spirits from entering the apartment.
He also killed their pet hamsters with a hammer and bleach because he believed
that his mother had worked witchcraft on them and they were possessed. At some
point that morning, [Rubio] began talking about the anti-Christ and an
approaching battle between seven good men and seven bad men. He told Camacho
that he was one of the good men. She had not heard him talking that way before.
Camacho testified that, in the past, [Rubio] had seemed like a normal person
except when he was inhaling spray paint. However, [Rubio] had not inhaled spray
paint for five days.
Later that day, [Rubio] told Camacho that the children were possessed and that he
was going to kill them. When Camacho began to cry, he told her to go into the
bathroom so she would not see anything. He decapitated their two-month-old
child, Mary Jane, and then he screamed for Camacho to help him. Camacho came
out of the bathroom and saw that [Rubio] had placed Julissa on the floor next to
Mary Jane’s headless body. He was trying to stab and decapitate Julissa, but she
was screaming and struggling. Julissa cried, “Papi, stop, don’t hurt me.” [Rubio]
told Camacho to hold Julissa’s legs. Camacho did so while [Rubio] stabbed and
decapitated Julissa.
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[Rubio] then washed the girls’ bodies in the kitchen sink and put them into trash
bags. He told Camacho to clean the carpet where he had killed them, and to clean
the knife he had used. Camacho wiped the carpet with one of Julissa’s dresses.
[Rubio] put the girls’ heads into a bucket in the kitchen. When he came out of the
kitchen, he told Camacho to have sex with him, saying that he was going to call his
friends to come over and rape her and then he would kill himself. They had sexual
intercourse and took a shower together. [Rubio] told Camacho that they would
make a pact. He made a cut on his wrist and a cut on her wrist so that they could
complete the pact.
Rubio v. State, No. AP-76,383, 2012 WL 4833809, at *2–4 (Tex. Crim. App. Oct. 10, 2012) (mem.
op., not for publication).
In addition, in one of Rubio’s written statements made to the police, he described the
events that followed, although some of his recollections do not entirely align with the sequence
from the TCCA’s summary:
Julissa and Mary Jane were know [sic] dead and Johnny was still acting very evil.
I know that he is not my son but I still loved him like my son. I knew I had to kill
Johnny last because he was the strongest. My wife and I both had to hold him
down because he was so strong. Johnny was yelling and growling at us. I poured
water on him and he kept shaking. I cut his head off with a larger knife. I did not
stab Johnny, I just cut his head. He was bleeding all over the carpet. I rather kill
him that [sic] let him live with the devil inside him.
After they were all dead my wife and I started to cry. We talked about killing
ourselves but we cannot die because we are in limbo. I tried to cut myself and the
knife would not cut me like it was not sharp enough to cut me.
* * *
After we put the bodies in plastic bags [Camacho] and I went and took a shower.
We cleaned ourselves off from all the blood. I do not remember what we did with
our clothes. We then went to the front room and I told my wife that we should
make love for the last time because we were going to jail. After we made love we
just laid in bed for the rest of the night till the next day.
[Camacho] and I talked about burying the babies . . . in my grandmother’s back
yard because she was a witch and she could control their evil power. I then started
to think and told my wife maybe I should just call the police and tell them what
happened. Everybody makes mistakes and we are not all perfect.
(Tr. Trans., Doc. 75–4, 82–83 (cleaned up)) Rubio told Camacho that they would “have to do the
right thing” and “turn [them]selves in.” (Id. at 185) Rubio’s brother then arrived at the house and
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called the police. When they arrived, Rubio said: “just arrest me I know I did something bad but
I rather my children be dead than be possessed.” (Id. at 83)
Camacho gave three police statements that corroborated much of Rubio’s account, with
minor differences in the timeline of events, such as when she and Rubio had sex or went to the
store to buy milk.
The State of Texas charged Rubio with four counts of capital murder. As discussed below,
the State tried Rubio twice for his crime. In both trials, Rubio’s alleged mental illness played a
prominent role.
B. Rubio’s First Trial
The trial court appointed Nathaniel C. Perez and Alfredo Padilla to represent Rubio, who
pled not guilty by reason of insanity as to all counts. Under Texas law, “[d]efendants are presumed
to be sane, and the State carries no burden to prove sanity.” Afzal v. State, 559 S.W.3d 204, 207
(Tex. App.—Texarkana 2018, pet. ref’d). Texas law establishes the requirements for an insanity
defense: “It is an affirmative defense to prosecution that, at the time of the conduct charged, the
actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.”
TEX. PENAL CODE § 8.01(a). The term “wrong” means “illegal”. Ruffin v. State, 270 S.W.3d 586,
592 (Tex. Crim. App. 2008). A defendant “may be medically insane, yet legally retain criminal
responsibility for a crime where a mental condition does not prevent him from distinguishing
right from wrong.” Clark v. State, 592 S.W.3d 919, 930 (Tex. App.—Texarkana 2019, pet. ref’d).
As a result, under Texas law, the primary question for deciding insanity is: “Does the defendant
factually know that society considers this conduct against the law, even though the defendant, due
to his mental disease or defect, may think that the conduct is morally justified?” Ruffin, 270
S.W.3d at 592.
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Rubio first stood trial in 2003. Both he and the State gave prominent role to his
understanding of the difference between whether his conduct was morally or criminally wrong.
In fact, “the only real issue in contention at the guilt-innocence phase was [Rubio’s] state of mind.”
Rubio v. State, 241 S.W.3d 1, 3–4 (Tex. Crim. App. 2007).
The physical evidence shed little light on Rubio’s motive for murdering the children. As a
result, Rubio’s and Camacho’s statements represented critical evidence regarding his state of
mind. At the time, Camacho was facing criminal charges and had invoked her Fifth Amendment
right to remain silent, rendering her unavailable as a witness. Instead, the State offered and the
court admitted all three of her statements. In the first, Camacho reported that “[i]n the past, a
long time ago, Rubio had said that he wanted to kill the two children.” (Tr. Trans., Doc. 75–3, 222)
He had also asked her, “[W]hat would you do if I were to kill the kids . . . ?” (Id.) In a second
statement, Camacho remarked that while she had “told the detectives that witchcraft was the
reason that [they] killed [the] children”, that explanation was actually “not true.” (Id. at 216) She
said “the real reason all of this occurred” was “because of money problems. . . . [I]t was better for
the children to die than to suffer.” (Id.) Camacho recalled that Rubio: “told me that he wanted to
cut the children’s heads off. I asked him why did he want to cut their heads off. He said that we
had no money, no way to take care of them. It was better that they go with God. I said O.K.” (Id.
at 217 (cleaned up))
The jury found Rubio guilty of capital murder, implicitly rejecting Rubio’s insanity
defense.
Under Texas law, once a jury finds an individual guilty of a capital offense, a punishment
phase occurs in which the jury hears additional evidence. Upon completion of the hearing, the
jury answers special interrogatories. See TEX. CODE CRIM. PROC. art.. 37.071 §§ 2(b)(2), (e)(1). As
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to Rubio, the trial court held the punishment-phase hearing and presented the jury with four
questions:
(1) whether Rubio posed a continuing threat to society;
(2) whether Rubio actually caused the deaths of the victims;
(3) whether sufficient mitigating circumstances justified life imprisonment
instead of the death penalty; and
(4) whether Rubio suffered from mental retardation.
(1st Tr. Trans., Doc. 48–4, 152–62)
In his opening statement for the punishment phase, Rubio’s attorney informed the jury
that they had prepared a defense, such as testimony from a licensed social worker. His lawyers
then claimed that Rubio “has instructed us not to do so”, and that Rubio requested that the jury
answer “yes” to whether Rubio posed a future threat to society and “no” to whether mitigating
circumstances warranted a life sentence. (1st Tr. Trans., Doc. 48–1, 14) Rubio’s counsel concluded
by saying, “Our client readily accepts your verdict, and readily accepts the sentence of death”. (Id.
at 15–16)
After this opening, the trial court called Rubio and his lawyers to the bench. Answering
the court’s questions, Rubio confirmed that his counsel had acted in accordance with his wishes,
even though the requested jury responses would result in the death penalty. Rubio acknowledged
that he had directed his counsel freely and voluntarily. Padilla then questioned Rubio, eliciting
that Rubio desired that the jury “assess death” to him, that he believed that God had forgiven him
and that he wanted to be with his children in heaven. (Id. at 15)
The State proceeded to present unrebutted testimony, after which the jury answered the
special issues consistent with Rubio’s expressed desire, requiring the imposition of a death
sentence. In November 2003, the Texas state court sentenced Rubio to death. (1st Tr. Trans., Doc.
48–4, 163)
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Under Texas law, a “judgment of conviction and sentence of death shall be subject to
automatic review by the Court of Criminal Appeals.” TEX. CODE CRIM. PROC. ART § 37.071(h).
Rubio afforded himself of his rights and appealed the conviction.
In 2004, while Rubio’s appeal remained pending, the Supreme Court of the United States
issued Crawford v. Washington, 541 U.S. 36 (2004), which significantly changed the
Confrontation Clause jurisprudence in the country.
The following year, in November 2005, as he awaited the decision on his direct appeal,
Rubio initiated a state habeas review. (State Petition, Doc. 48–1, 6) Under Texas law, both direct
appeals and state habeas proceedings run concurrently in capital cases. See TEX. CODE CRIM.
PROC. art. 11.071 § 4.
After Crawford, Rubio’s direct appeal focused on the introduction of Camacho’s out-ofcourt statements, which represented a constitutional violation of the Confrontation Clause. The
only issue for the TCCA was whether the admission of Camacho’s statements amounted to
harmless error. The TCCA recognized that the evidence “which proves [Rubio’s] participation in
the murders, such as his own statement and the physical evidence corroborating his and
Camacho’s accounts of the murders . . . is indeed overwhelming.” Rubio, 241 S.W.3d at 11. As to
Rubio’s state of mind, however, the TCCA found that “the crucial evidence . . . came almost
exclusively from one source: Camacho’s statements.” Id. Based on this finding, the court found
that Camacho’s “statements likely contributed to the jury’s verdict of guilt, such that the error in
admitting her statements at trial clearly prejudiced [Rubio’s] case.” Id. The TCCA reversed the
guilty verdict, which automatically mooted Rubio’s parallel state habeas challenge. See Ex parte
Rubio, No. WR–65,784–01, 2008 WL 152726 (Tex. Crim. App. 2008).
During these proceedings, the Texas Department of Criminal Justice—Correctional
Institutions Division (“TDCJ”) held Rubio on death row at the Polunsky Unit, except for a brief
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period for examination at TDCJ’s psychological treatment unit, Jester IV. Following the reversed
conviction, the State transferred custody of Rubio back to Cameron County.
C. Rubio’s Second Trial
The trial court again appointed Perez to represent Rubio. Perez’s reappointment as lead
counsel provided an advantage unavailable to most attorneys—i.e., he had already prepared for
and litigated a defense for Rubio. Perez had presented evidence relating to Rubio’s mental health
to a jury and had observed its reaction. His experience with Rubio’s case provided him with an
invaluable backdrop for the second trial.
The trial court also appointed Ed Stapleton as second-chair. He brought decades of
experience to the defense team, having handled felony and capital trials for more than forty years.
He possessed extensive experience litigating mental health issues in capital cases, and had
presented and published on capital-punishment and mental-health issues in defense
representation. (See Habeas Record, Doc. 83–1, 161–67)
Perez and Stapleton strengthened their team by securing the services of a fact investigator
and by retaining Carmen De La Rosa Fisher as a mitigation specialist. Fisher held a master’s
degree in social work and was a licensed master social worker. (Id. at 169–70, 211) She had the
responsibility of screening for mental-health issues relevant to Rubio’s defense.
Early in their preparations for the second trial, the defense team identified Rubio’s mental
health as a significant issue. They benefited not only from Perez’s experience with Rubio, but also
from having other attorneys and courts scrutinize the defense in the first trial. For example, in
the TCCA’s decision reversing the conviction, the court not only analyzed the Confrontation
Clause violations, but addressed other issues that trial counsel could take into consideration for
the second trial. In addition, in Rubio’s mooted habeas application, his habeas counsel had lodged
several ineffective assistance of counsel claims. For example, Rubio faulted his trial counsel for
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not “obtain[ing] expert assistance in time to assist in the presentation of mitigating evidence
during the sentencing phase”. (Habeas Record, Doc. 77–3, 32) Rubio also argued that trial
counsel should have retained a punishment-phase mental-health expert who could testify about
the neglect and sexual abuse that Rubio suffered as a child, and the impact of the abuse,
particularly in the context of Rubio’s low intelligence and mental illness. (Id. at 41)
The defense also retained Dr. Jim Owens to perform a neuropsychological evaluation of
Rubio. The MRI and EEG conducted on Rubio were each “within the normal range of variation”
and revealed no evidence of “trauma” and “no evidence of organic neurological disease.” (Clerk’s
Record, Doc. 76–12, 253)
And they hired neuropsychologist Dr. Gilbert Martinez, who
administered a comprehensive battery of psychological testing on Rubio.
In the end, the defense team secured the services of at least nine medical and mentalhealth experts before Rubio’s second trial.
1. Competency Trial
The defense initially challenged Rubio’s competency to stand for trial. As a result, the
court scheduled a separate proceeding before a jury to determine Rubio’s competency. See TEX.
CODE CRIM. PROC. art.. 46B.051 (authorizing such a hearing). The court held voir dire to select
the jury, which would be distinct from any jury that would consider Rubio’s innocence or guilt, or
any punishment. The court appointed Dr. Troy Martinez as a competency expert. He prepared a
lengthy report that extensively discussed Rubio’s psychological background. Dr. Martinez opined
that at the time of the murders, Rubio suffered from a psychotic condition, but was “nevertheless
capable of appreciating the wrongfulness of his conduct. Thus, Mr. Rubio was sane.” (Report,
Doc. 76–10, 243 (emphasis in original))
The defense called two mental-health experts, Dr. Jolie S. Brams and Dr. Raphael Morris,
who each testified about Rubio’s mental state and its impact on Rubio’s competency. Dr. Brams
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testified that Rubio experienced a childhood “characterized by chaos and by abuse”, which led
him to develop a “delusional disorder” that precluded him from “rationally, reasonably
consider[ing]” any possible defenses that did not accord with his warped worldview. (Comp. Trial,
Doc. 72–24, 108–111) Dr. Morris opined that Rubio did not possess the “ability to consult with
his lawyer with a reasonable degree of rational understanding” and “lack[ed] a rational
understanding of the proceedings against him.” (Id. at 230–231) The jurors also heard testimony
from Dr. William Mark Valverde, a court-appointed psychiatrist from Rubio’s first trial, who
testified that Rubio exhibited symptoms consistent with paranoid schizophrenia.
The State relied on the testimony of Dr. Martinez, who outlined why he believed that Rubio
was legally sane when he committed the murders. (Comp. Trial, Doc. 73–1, 139–97) The State
also called jail staffers as witnesses, and they testified that Rubio was able to clearly communicate
with them concerning his medical needs and that he kept his cell clean and orderly. (Comp. Trial.
Doc. 73–2, 100–106, 152–53)
Following the presentation of evidence, the jury unanimously found Rubio competent to
stand trial.
2. Guilt/Innocence Phase
In July 2010, the trial to determine Rubio’s guilt began. Although the grand jury indicted
Rubio in Cameron County, the trial court granted the defense motion to hold the trial in
neighboring Hidalgo County, due to extensive pre-trial publicity.
a. The State’s Case
The State focused its case in chief on the sheer brutality and horror of the crime, and
disputed both that Rubio suffered from mental illness and that any mental illness kept him from
knowing that his actions were criminally wrong. As to Rubio’s mental state, the State relied on
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three primary evidentiary sources: (1) Rubio’s police statements; (2) Camacho’s trial testimony;
and (3) circumstantial factors.
First, the State highlighted Rubio’s own words, reading his post-arrest written statement
into the record. (Tr. Trans., Doc. 74–14, 20–27) The State also played Rubio’s post-arrest
videotaped statement for the jury and submitted a transcript of the video into evidence. (Id. at
69–70)
Second, the State called Camacho to testify regarding the murders and Rubio’s mental
state when he killed the children. By the time of Rubio’s second trial, Camacho had pled guilty to
her part in the crime and was serving a life sentence. (Tr. Trans., Doc. 74–13, 136) Her recollection
of the killings generally coincided with the account in Rubio’s police statements, with some
discrepancies, such as the order in which Rubio killed each child.
As to Rubio’s mental state, Camacho testified that before March 2003, Rubio had asked
her what she would do “if he killed the babies”. (Id. at 149) At the time, she “thought he was
playing” and did not pay attention to him. (Id. at 148)
She also testified that on the night of the murders, she walked into the kitchen and saw
her decapitated son. When she begged Rubio to kill her, he tried to break her neck, but could not
do so. (Id. at 163) The two of them then walked to a nearby grocery store to buy milk. (Id. at 166–
67) He acted “normal” during the trip, but when they returned home, he told her “about some
spirit, a friend spirit wants [them] together, and that [they] are going to be in prison forever, and
for a while we are not going to see each other, and a lot of stuff like that.” (Id. at 168–69) In
addition, at some point after the murders, Rubio and Camacho showered together, and then Rubio
forced her to have sex with him, at the threat of having his friends rape her if she refused. (Id. at
153, 210)
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Camacho also related what occurred when her friend and brother-in-law arrived at the
house and discovered the children’s bodies. When they asked why they had committed the act,
she told them that “it was not [Rubio], it was me.” (Id. at 169) She did so to defend Rubio,
“[b]ecause . . . I think he was crazy or something.” (Id. at 170) And she testified that when she
and Rubio were incarcerated, he wrote letters to her, instructing her “to act like I was insane . . .
so I could get out and got [sic] to a hospital . . . or something like that.” (Id. at 332–333)
The State also introduced Camacho’s third police statement, in which she claimed that she
and Rubio decided to kill the children “because of money problems” and not because they believed
that the children were possessed. (Statement, Doc. 75–3, 216–18)
However, when cross-
examined about the statement, she recanted, denying that financial stress and the suffering of the
children had motivated the crime. (Tr. Trans., Doc. 74–13, 252) When asked why she had made
the statement, she answered, “[b]ecause the detective, I don’t know which one, they told me that
John Allen Rubio was saying that that is why we killed the babies. That’s why we killed the babies.
And that’s why I tried to be like him. I tried to be in the same page. So I said that, but it wasn’t
that.” (Id. at 257; see also id. at 255 (“We just made that up.”); id. at 263 (“All of that is a lie.”))
Third, the State presented substantial circumstantial evidence that it believed revealed
that Rubio was sane when he killed the children and understood that doing so was a crime. In its
closing argument, the State summarized this evidence. (Tr. Trans., Doc. 74–20, 37–47) Months
before the killings, Rubio asked Camacho what she would do if he “killed the babies”. Two weeks
before the murders, he told a friend, “I know how to commit the perfect crime; just say you are
insane.” Two days before the crimes, he purchased cleaning supplies that could be used to clean
up a crime scene. After killing the children, he and Camacho placed the bodies in garbage bags to
dispose of them. And when police arrived at the house, Rubio walked toward an officer, held out
his arms as if to be handcuffed, and said, “[a]rrest me”, acknowledging “at that time that what he
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had done and what he intended to do was wrong.” When interviewed by police that same night,
he waived his right to remain silent and immediately acknowledged, “I killed the kids. What more
do you need?” He later “tried to deflect blame off himself” by blaming Camacho for the murders.
b. The Defense
Rubio’s counsel focused his defense on proving that he did not know that his acts were
criminal. They called fifteen witnesses, whose testimony centered on Rubio’s troubled childhood
and the mental illness that had plagued his life.
As its first witness, the defense called Hilda Barrientes, Rubio’s mother. (Tr. Trans., Vol.
74–15, 157–55) She detailed her use of alcohol while pregnant with Rubio, and the violence and
turmoil that Rubio witnessed and personally experienced in his home as a child. She described
how she taught Rubio to become a male prostitute. In addition, Barrientes explained that as a
child, Rubio claimed to see shadows and hear voices, some of which told him that he was the
“chosen one.” (Id. at 178) She never sought an evaluation, much less treatment, for Rubio for any
form of mental illness. She also acknowledged that Rubio used intoxicants, such as spray paint
and marijuana, which she procured for him and which caused him to experience similar delusions.
The defense called numerous other fact witnesses, such as close family members, who
testified about Rubio’s interaction with the children and his mental state after the killings. These
witnesses revealed Rubio’s fear of witchcraft, his auditory hallucinations, his delusions involving
his deceased grandmother, and his belief in being the “chosen one.” They also confirmed that
Rubio had struggled with huffing spray paint.
Rubio’s counsel also presented Dr. Valverde and Dr. Morris, who provided ample
testimony regarding how Rubio’s mental illness ultimately manifested in the murders. Dr.
Valverde testified that Rubio’s symptoms were consistent with a form of paranoid schizophrenia
that typically does not respond to medication. (Tr. Trans., Doc. 74–16, 35) He found particularly
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noteworthy that Rubio believed he was the “chosen one” and that the end of the world was
imminent. Dr. Valverde opined with a reasonable psychiatric probability that when Rubio killed
the children, he was suffering from a mental disease or defect that precluded him from knowing
that his conduct was criminal. (Id. at 48–49)
Dr. Morris focused on the traumatic events in Rubio’s childhood, suggesting that Rubio
suffered from Post-Traumatic Stress Disorder. (Id. at 107–255) He attributed Rubio’s childhood
trauma to his inability to form healthy attachments. (Id. at 118) Dr. Morris diagnosed Rubio with
schizophrenia, paranoid type, and opined that Rubio suffered from hallucinations and delusions.
He explained that Rubio never received adequate treatment in his formative years for his mental
illness, and that Rubio’s intense fear and terror drove him to kill the children. (Id. at 133–35) He
also testified that when committing the crimes, Rubio was suffering from a psychotic disorder.
(Id. at 143)
c. The State’s Rebuttal
The State presented several rebuttal witnesses, including individuals who had interacted
with Rubio while he was in custody. A manager of the jail facility explained that Rubio kept his
cell tidy, did not complain about or make allusions to delusions or hallucinations, and did not
display any signs of mental illness. (Tr. Trans., Doc. 74–18, 75–80) One fellow inmate testified
that Rubio planned to feign insanity: “[Rubio said] [t]hat his attorney had tell him not to pass the
IQ test so he can get insane . . . . He was trying to plea he was crazy.” (Id. at 103) Another inmate
overheard Rubio say that when he killed the children, “he wasn’t high and that he wasn’t crazy.”
(Id. at 130) At a different time, Rubio told this inmate that he intended to plead insanity. When
the inmate responded that he (Rubio) was not crazy, Rubio “shushed me and said, yeah, but they
don’t know that.” (Id. at 148)
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As its final rebuttal witness, the State called Dr. Michael Welner, a psychiatrist who had
interviewed Rubio before the trial. (Tr. Trans., Doc. 74–19, 6–174) He disagreed with the earlier
diagnoses of Rubio’s mental illness, questioned whether Rubio truly exhibited signs of psychosis,
and testified that the nature of the killings demonstrated that Rubio knew his conduct was legally
wrong.
Following the close of evidence, the attorneys presented lengthy closing arguments and
the court instructed the jury. On July 26, 2010, after deliberating for about four and a half hours,
the jury found Rubio guilty on all four counts of capital murder. (Tr. Trans., Doc. 74–20, 102–06)
3. Punishment Phase
Having found Rubio guilty of capital murder, the jury then heard evidence to consider
specific questions that would determine whether Rubio received a life sentence or the death
penalty. In particular, the jury had to answer the following special issues:
(1)
Whether there is a probability that the Defendant would commit criminal
acts of violence that would constitute a continuing threat to society;
(2)
Whether the Defendant actually caused the death of the deceased or did not
actually cause the death of the deceased but intended to kill the deceased
or another or anticipated that a human life would be taken;
(3)
Whether, taking into consideration all of the evidence, including the
circumstances of the offense, the defendant’s character and background,
and the personal moral culpability of the defendant, there is a sufficient
mitigating circumstance or circumstances to warrant that a sentence of life
imprisonment rather than a death sentence be imposed.
(Tr. Trans., Doc. 74–24, 26–27) In this punishment phase, Rubio’s mental state again played a
prominent role.
In seeking the death penalty, the State sought to highlight Rubio’s lack of remorse after
the killings, the future threat that he posed to fellow inmates, and the impact of the children’s
death on family members. For example, the State presented evidence that Rubio seemed jovial
when arrested and did not express any remorse to police officers. (Tr. Trans., Doc. 74–21, 54) The
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State introduced additional evidence regarding the horrific nature of the killings, and presented
the testimony of family members who explained how deeply they loved the children and the
trauma they suffered from the children’s deaths. (Tr. Trans., Doc. 74–23, 90–97) Other evidence
concerned Rubio’s criminal history, including arrests for public intoxication and possession of
marijuana, the report of a domestic disturbance at his house, and his testing positive for drugs
while on probation. Finally, the State submitted evidence that Rubio had set fires in a detention
facility and had possessed marijuana while on death row. One witness described the prison
classification system and opined that Rubio would have access to weapons and illegal substances
if given a life sentence. Another witness testified that Rubio would pose a threat to the general
population of any prison.
In response, the defense asked the jury to find that Rubio did not present a threat to fellow
inmates and that his traumatic background and struggle with mental illness represented
mitigating circumstances that warranted a life sentence rather than the death penalty. The
defense resubmitted evidence from the guilt/innocence phase of the trial, such as testimony from
Rubio’s mother, Dr. Valverde, and Dr. Morris. Individuals who knew Rubio in school testified
that he had attended special education classes and that even though he struggled academically,
he had behaved well. Jail personnel testified that Rubio had been respectful and calm while
incarcerated, and that he had not demonstrated violent or other problematic behavior. And
several religious leaders pleaded that Rubio should be extended leniency.
The defense’s presentation culminated in the testimony from Dr. Jolie Brams, a licensed
clinical psychologist. She had worked on Rubio’s case for over two years, interviewing Rubio
extensively, meeting with several of his family members and individuals who knew him well, and
reviewing substantial materials that included jail and medical records. Dr. Brams testified at
length about Rubio’s traumatic childhood, describing his unstable homelife, his exposure to
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violence, his early introduction to substance abuse, and other factors that contributed to his
mental difficulties as an adult. (Tr. Trans., Doc. 74–23, 169–237) She explained how Rubio had
grown up in poverty with unresponsive, distant, and dysfunctional toxic parents. She described
Rubio’s history of hyperactivity, low intelligence, and learning and emotional disorders. And she
told the jury that Rubio had suffered for years from a thought disorder, a form of psychosis, that
left him unable to differentiate between reality and fantasy. According to Dr. Brams, as a result
of all these factors, when Rubio killed the children, he had been mentally ill with delusions and
psychotic thoughts that rendered him unable to control his actions. (Tr. Trans., Doc. 74–24, 170–
218)
After the presentation of evidence and the arguments of counsel, the jury deliberated and
answered the special issues in a manner requiring the imposition of a death sentence. The trial
court sentenced Rubio to death.
D. Direct Appeal
In July 2011, Rubio appealed, filing a 111-page brief in which he raised four principal
grounds for relief, although only Issue No. Four proves relevant to the instant proceedings. In
that issue, Rubio argued that “the jury’s failure to find that he was insane at the time of the offense
is so against the great weight and preponderance of the evidence as to be manifestly unjust.”
(Appellant’s Brief, Doc. 76–8, 15); see also Rubio v. State, No. AP-76,383, 2012 WL 4833809, at
*1 (Tex. Crim. App. Oct. 10, 2012) (not designated for publication).
In October 2012, the TCCA affirmed Rubio’s conviction and sentence. As to Issue No.
Four, the TCCA conducted a thorough review of the trial record and reached a conclusion in the
State’s favor:
[T]he record contains conflicting evidence as to whether [Rubio] was legally insane
at the time he committed the offense. The credibility and weight of this evidence
were within the province of the jury. [Rubio] had the burden of proving his
affirmative defense by a preponderance of the evidence. The jury’s implicit
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determination that [Rubio] did not meet this burden was not so against the great
weight and preponderance of the evidence as to be manifestly unjust.
Rubio, 2012 WL 4833809, at *13.
E. 2013 and 2016 State Habeas Applications
In October 2013, Rubio initiated his first habeas application. (2013 Habeas Application,
Doc. 83–3) He raised six challenges in his 109-page submission, of which the first three faulted
trial counsel’s investigation into whether Rubio had suffered Fetal Alcohol Spectrum Disorder
(“FASD”) stemming from his neonatal exposure to alcohol.
The Texas court provided significant resources for the preparation and litigation of
Rubio’s state habeas challenge, including appointing two habeas attorneys. In addition, the state
habeas court appointed a mitigation expert and approved $13,000 for an investigation into
whether Rubio suffered from FASD. In connection with the 2013 Habeas Application, Rubio’s
habeas counsel consulted with experts in psychology, psychiatry, and neuropsychology.
In August 2016, the state habeas court held an evidentiary hearing, which in large measure
focused on the FASD evaluation. (Habeas Record, Doc. 83–1)
Rubio’s lawyer called five
witnesses: second-chair trial counsel Stapleton, two attorneys with experience in capital murder
litigation, a jury consultant, and the court-appointed mitigation investigator. The court also
received affidavits from Rubio’s habeas experts.
Following the evidentiary hearing, state habeas counsel submitted a supplemental habeas
application, raising four additional grounds for relief that centered on allegations of corruption in
the District Attorney’s office. (2016 Supp. Habeas App., Doc. 80–6, 75–113) Under Texas law, a
subsequent habeas application may proceed only in limited circumstances, including when “the
current claims and issues have not been and could not have been presented previously in a timely
initial application or in a previously considered application . . . because the factual or legal basis
for the claim was unavailable on the date the applicant filed the previous application”. TEX. CODE
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CRIM. PROC. art. 11.071 § 5(a)(1). In April 2017, the state habeas judge found that Rubio’s 2016
Supplemental Habeas Application was a subsequent application. (Order, Doc. 80–6, 175–177) As
required by the Texas statute, the state habeas court directed that the 2016 Supplemental Habeas
Application and related materials be sent to the TCCA for further consideration. (Id.)
As to the grounds raised in Rubio’s 2013 Habeas Application, the state habeas court
rendered findings of fact and conclusions of law, recommending that the TCCA adopt them and
deny the relief that Rubio requested. (State Habeas Court Order, 83–7, 4–18) On the issue of
whether Rubio’s trial counsel had adequately investigated FASD, the court found that they had:
[Rubio’s counsel] Stapleton investigated the possibility that Applicant suffered
from FAS or FASD, one medical doctor opined that he was aware of Applicant’s
mother’s alcohol consumption while pregnant with Applicant, but did not diagnose
Applicant with FAS. Another medical doctor informed Mr. Stapleton that he found
no facial dysmorphia, a classic feature of those who suffer from FAS or FASD.
Based on these facts, Mr. Stapleton made a strategic decision to not investigate this
issue any further.
(Id. at 9)
The matter proceeded to the TCCA for review. About a year later, in May 2018, the court
concluded “that the record supports the trial court’s findings of fact and conclusions of law”, with
two exceptions that do not bear relevance on the instant proceedings. Ex parte Rubio, Nos. WR–
65,784–02 and WR–65,784–04, 2018 WL 2329302, at *4 (Tex. Crim. App. 2018). As a result,
the TCCA denied the relief that Rubio sought in his 2013 Habeas Application. In addition, the
court found that Rubio’s 2016 filing represented a subsequent application under Texas law, and
that Rubio had not satisfied the requirements to receive consideration of those issues. Thus, the
TCCA “dismiss[ed] [the 2016 Supplemental Habeas Application] as an abuse of the writ without
reviewing the merits of the claims raised.” Id. at *5.
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F. Federal Petition
In September 2019, Rubio filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254, amending it five months later. (Pet., Doc. 17; 1st Am. Pet., Doc. 24) 1 He raised ten claims,
only one of which he had already presented to the state courts. The Anti-Terrorism and Effective
Death Penalty Act (AEDPA) requires an inmate to exhaust state court remedies before seeking
federal habeas relief. See 28 U.S.C. § 2254(b)(1). Thus, in February 2021, this Court stayed and
administratively closed this matter to allow Rubio to exhaust his state court remedies as to his
new claims. (Stay Order, Doc. 53)
G. 2021 State Habeas Application
In July 2021, Rubio filed his third state habeas application in the TCCA, raising the
grounds that he presented for the first time in his federal court Petition. The Texas court reviewed
the 2021 Habeas Application and concluded that Rubio had failed to meet the statutory
requirements to allow a subsequent habeas application to proceed. In January 2022, the TCCA
“dismiss[ed] the subsequent application as an abuse of the writ without considering the claims’
merits.” (Habeas Record, Doc. 81–2, 6)
H. Second Amended Federal Habeas Petition
Rubio returned to this Court and submitted his Second Amended Petition, presenting the
following ten grounds for relief:
(1)
Trial counsel did not include a person with qualifying mental health
expertise as a member of the defense team.
(2)
Trial counsel failed to investigate and use evidence about the existence and
effects of prenatal exposure to alcohol.
(3)
Trial counsel failed to investigate and prepare for a guilt/innocence phase
defense.
1 This Court appointed counsel to represent Rubio in any federal habeas challenge to his conviction and sentence.
(Order, Doc. 3)
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(4)
The State violated Rubio’s due process rights under the Fourteenth
Amendment by engaging in a pattern of misconduct.
(5)
The State violated Rubio’s equal-protection rights by pursuing the death
penalty against him (1) because of his indigent status and (2) based on a
public survey.
(6)
The State violated Rubio’s right to due process under Napue v. Illinois
when it elicited testimony that it knew, or should have known, to be false
and misleading.
(7)
Trial counsel failed to investigate and use evidence about Rubio’s mental
health during his prior incarceration.
(8)
The State violated Rubio’s right to due process under Napue v. Illinois
when it elicited testimony that it knew, or should have known, to be false
and misleading from A.P. Merillat.
(9)
The State violated Brady v. Maryland by failing to disclose Merillat’s false
testimony in another case.
(10)
Trial counsel failed to prepare for, and rebut, Merillat’s false testimony
during the punishment phase.
(2nd Am. Pet., Doc. 61) 2 After Respondent filed its Answer (Doc. 84), Rubio submitted his Reply
(Doc. 87) and separately requested discovery relating to several of his claims. (Motion for
Discovery, Doc. 88) Respondent opposes the requested discovery. (Response, Doc. 89)
II.
Standard of Review
Honoring principles of comity and federalism, Congress enacted AEDPA “to impose
significant limits on the discretion of federal courts to grant habeas relief.” Calderon v.
Thompson, 523 U.S. 538, 554 (1998); see also Danforth v. Minnesota, 552 U.S. 264, 278 (2008)
(observing that the courts have “adjust[ed] the scope of the writ in accordance with equitable and
prudential considerations”). AEDPA imposes exacting procedural requirements to determine
what issues a habeas court may consider, and establishes strict guidelines for any review.
2 All future citations to this pleading will be referred to as “Petition” or “Pet.”
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A. Deferential Federal Review
As an initial matter, AEDPA establishes that federal habeas review is limited in scope and
secondary to the state court process. States “hold the initial responsibility for vindicating
constitutional rights”. Engle v. Isaac, 456 U.S. 107, 128 (1982); see also Anderson v. Johnson,
338 F.3d 382, 386 (5th Cir. 2003) (explaining that federalism guarantees the States “an initial
opportunity to pass upon and correct alleged violations of its prisoners’ federal rights” (cleaned
up)).
AEDPA provides for a deferential federal review. Rubio disagrees, arguing that the Court
should apply de novo review because the state court denied him due process. (Pet., Doc. 61, 88)
He contends that “[s]ection 2254(d) does not bar relitigation because Rubio was denied a
meaningful opportunity to be heard in state post-conviction proceedings.” (Id.)
AEDPA, however, contains no exception based on alleged irregularities in the state habeas
process. Rubio does not identify any authority creating a judicial exception when state habeas
review fails to comply with an inmate’s expectations. On the contrary, “a full and fair hearing is
not a prerequisite to the operation of AEDPA’s deferential scheme.” Wiley v. Epps, 625 F.3d 199,
207 (5th Cir. 2010), as revised (Nov. 17, 2010) (citing Valdez v. Cockrell, 274 F.3d 941, 946 (5th
Cir. 2001)). Certain exceptions exist, as explained in Wiley, but Rubio has not demonstrated that
those exceptions apply here. As a result, the Court declines to apply de novo review.
Under AEDPA’s rigorous requirements, a federal court reviews “[c]laims presenting
questions of law” under Section 2254(d)(1). Neal v. Vannoy, 78 F.4th 775, 783 (5th Cir. 2023).
That provision “is . . . divided into two categories: the ‘contrary to’ standard, and the ‘unreasonable
application’ standard.” Id. An inmate may only secure relief after showing that the state court’s
rejection of his claim was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §
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2254(d)(1), (2).
Claims presenting questions of fact are reviewed under two sections of AEDPA. First, a
federal habeas court presumes the underlying factual determinations of the state court to be
correct, unless the inmate “rebut[s] the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); see also Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004)
(“As a federal habeas court, we are bound by the state habeas court’s factual findings, both implicit
and explicit.”). Second, a petitioner must show that the state court’s ultimate decision “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). “[A] state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). “Claims presenting mixed questions of law
and fact are reviewed under a combination of these provisions; a state court’s ultimate legal
conclusion is reviewed under Section 2254(d)(1), while the underlying factual findings supporting
that conclusion are reviewed under Sections 2254(d)(2) and (e)(1).” Neal, 78 F.4th at 783.
In performing the AEDPA review, a federal court generally cannot “develop and consider
new evidence.” Shoop v. Twyford, 596 U.S. 811, 819 (2022). AEDPA limits “review of factual
determinations under § 2254(d)(2)” to “‘the evidence presented in the State court proceeding,’”
and “review of legal claims under § 2254(d)(1) . . . ‘to the record that was before the state court.’”
Id. (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). “A federal court may admit new
evidence only in two limited situations: Either the claim must rely on a ‘new’ and ‘previously
unavailable’ ‘rule of constitutional law’ made retroactively applicable by [the Supreme Court], or
it must rely on ‘a factual predicate that could not have been previously discovered through the
exercise of due diligence.’” Twyford, 596 U.S. at 812 (quoting 28 U.S.C. § 2254(e)(2)(A)).
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B. Exhaustion Requirement
Under 28 U.S.C. § 2254(b)(1), a federal habeas petition “shall not be granted unless it
appears that . . . the applicant has exhausted the remedies available in the courts of the State[.]”
The exhaustion doctrine precludes federal consideration of any claim raised for the first time in
federal court. This limitation applies because, under § 2254, a court can only review a state court’s
decision. If the petitioner did not raise the issue in the state courts, then no decision exists to
review. See Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002).
As a corollary to exhaustion, the procedural-bar doctrine prescribes that “federal courts
will not disturb state court judgments based on adequate and independent state law procedural
grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). “That rule procedurally bars federal habeas
petitions where ‘the last state court to review the petitioner’s claims unambiguously based its
denial on a state procedural bar.’” Mullis v. Lumpkin, 47 F.4th 380, 387 (5th Cir. 2022) (quoting
Gonzales v. Davis, 924 F.3d 236, 243 (5th Cir. 2019) (per curiam)). For example, a Texas state
court’s decision to dismiss a habeas application on the grounds that the petition constituted a
successive petition and an abuse of the writ would represent “an independent and adequate state
ground” triggering the procedural-bar doctrine as to a federal habeas petition containing the same
claims. Gutierrez v. Stephens, 590 F. App’x 371, 384 (5th Cir. 2014) (quoting Hughes v.
Quarterman, 530 F.3d 336, 341 (5th Cir. 2008)).
A petitioner bears the burden to overcome any applicable procedural bar, McCleskey v.
Zant, 499 U.S. 467, 494 (1991), and satisfies this burden by showing: (1) cause and actual
prejudice or (2) that “a constitutional violation has probably resulted in the conviction of one who
is actually innocent.’” Haley, 541 U.S. at 393 (cleaned up). If the defendant received the death
penalty, he can demonstrate actual innocence by providing “clear and convincing evidence that,
but for a constitutional error, no reasonable juror would have found the petitioner eligible for the
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death penalty under the applicable state law.” Busby v. Davis, 925 F.3d 699, 710 (5th Cir. 2019)
(citing Sawyer v. Whitley, 505 U.S. 333, 336 (1992)).
In the present matter, Rubio raises ten claims, although of these, his 2013 Habeas
Application contained only Claim Two, in which he alleges that his trial counsel was ineffective
for not fully investigating and raising the issue of Rubio’s prenatal exposure to alcohol. 3 As to the
remaining claims, the Court stayed this proceeding to enable Rubio to submit them to a Texas
court, which found the claims an abuse of the writ. As a result, a procedural bar applies to all of
Rubio’s claims except Claim Two,
The Court will first address Claim Two before examining the procedurally-defaulted
claims. With respect to the nine defaulted claims, the Court groups them into three separate
categories: (1) claims regarding mental health (Claims One, Three, and Seven); (2) claims
regarding prosecutorial corruption (Claims Four and Five); and (3) claims regarding the State’s
expert witnesses (Claims Six, Eight, Nine, and Ten).
III.
Analysis of Claim Two: FASD
Rubio contends that his trial counsel failed to investigate and use evidence about the
existence and effects of Rubio’s prenatal exposure to alcohol. (Pet., Doc. 61, 71) As to this claim,
Rubio may secure relief only by demonstrating that the state court’s denial was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1), (2). He must show that no possibility
exists that “fairminded jurists could disagree that the state court’s decision conflicts with [the
United States Supreme] Court’s precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). A
3 Respondent concedes that Rubio properly exhausted Claim Two by presenting it within the 2013 Habeas Application.
(Answer, Doc. 84, 86)
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federal habeas court analyzes these issues by relying solely on the record that was before the state
court. Shoop, 596 U.S. at 819.
As it pertains to Rubio, the state habeas court explained that FAS “is one of several
different disorders under what is now recognized as the umbrella ‘fetal alcohol spectrum
disorder.’ (‘FASD’).” 4 (Habeas Record, Doc. 83–7, 7) FASD encompasses “a pattern of mental and
physical defects that can develop in a fetus in association with high levels of alcohol consumption
during pregnancy”, and which “can stunt fetal growth or weight, create distinctive facial
dysmorphia, damage neurons and brain structures, which can result in psychological or
behavioral problems, and cause other physical damage.” (Id.) In his Petition, Rubio identifies
various effects of brain damage that FASD may cause, including: “[S]ignificant cognitive
abnormalities; reduce[d] mathematical skills and school performance; limit[ed] impulse control;
impair[ed] social perception; correspond[ing] . . . deficits in higher-level receptive and expressive
language, as well as with poor abstractive and metacognitive capacity; and . . . problems with
memory, attention, and judgment.” (Pet., Doc. 61, 75)
A. Trial Counsel’s Investigation
The record contains substantial evidence that Rubio’s trial counsel appreciated the need
to investigate the possibility that Rubio suffered from FASD. Throughout the preparations for the
trial, Rubio’s counsel sought and reviewed substantial information relevant to FASD, primarily in
the form of evaluations by experts.
Shortly before trial, Rubio identified Dr. John Matthew Fabian as a retained expert who
would offer opinions at trial regarding how the “pre-natal alcohol abuse” by Rubio’s mother led
to “mental health deficiency” and adverse “brain development” in Rubio. (Habeas Record, Doc.
4 Although FAS and FASD represent distinct, albeit related conditions, the Court refers to the entire
spectrum disorder as “FASD”, distinguishing between the two conditions only when necessary.
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83–3, 36; Defense Expert Designations, Doc. 76–18, 2 and 4) Dr. Fabian had conducted a forensic
psychological evaluation of Rubio, meeting with him several times and administering various
psychological tests. (Habeas Record, Doc. 83–3, 133)
He reported that Rubio’s mother
acknowledged that she “abuse[d] alcohol during her pregnancy with him”, drinking “about a sixpack per day through her pregnancy.” (Id. at 138) Dr. Fabian indicated that the alcohol and drug
use “possibly” affected Rubio’s “prenatal neurocognitive development”. (Id. at 160) Admittedly,
the record does not contain any indication that Dr. Fabian expressly considered FAS or FASD as
part of his evaluation.
Trial counsel also secured the assistance of Dr. Jim Owens, an Assistant Professor of
Pediatrics and Neurology with the Baylor College of Medicine. (Tr. Trans., Doc. 76–12, 253) He
conducted a “detailed neurological examination” and a physical assessment of Rubio, and testified
at trial that he did not observe any “dysmorphic features” in Rubio’s face, which represented an
important finding because “facial dysmorphia [is] one of the signs of [FAS].” (Id. at 250; Habeas
Record, Doc. 83–1, 250; Owens Report, Doc. 76–12, 248) In addition, Dr. Owens conducted both
an MRI and EEG on Rubio and uncovered no evidence of trauma or brain disease. (Clerk’s Record,
Doc. 76–12, 252–53) The State’s neuropsychology expert in the competency trial agreed that
“[t]he data from the available testing does not reflect retardation, brain damage or cognitive
impairment.” (Tr. Trans., Doc. 73–3, 141; id. at 102 (commenting that “Doctor Owens said that
there was no evidence of any brain damage or brain injury. . . . “[I]n layman’s terms, [that] means
that there is nothing wrong with his brain.”).
Defense counsel also retained Dr. Raphael Morris, a psychiatrist, who reviewed Dr. Owen’s
conclusions with an eye toward exploring the possibility of FASD. In the competency trial, Dr.
Morris testified that he knew of the “substance abuse history” of Rubio’s mother and was
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concerned about the “contribution of substances while she was pregnant with him.” (Tr. Trans,
Doc. 72–24, 233) Yet Dr. Morris did not diagnose Rubio with FASD. (Tr. Trans., Doc. 72–25, 75)
Trial counsel sought additional investigation of possible brain damage. They proposed
retaining Dr. Pablo Stewart to “perform a functional MRI and PET scan to determine whether Mr.
Rubio has organic damage that would explain his actions in this crime.” (Clerk’s Record, Doc. 76–
18, 6) The trial court, however, denied any additional funding for such an inquiry. (Id.)
Importantly, the state habeas court noted that, at the time of Rubio’s trial, “the opinion of
a medical doctor was necessary to make a diagnosis of FAS or FASD.” (Habeas Record, Doc. 83–
7, 8) Despite various experts assessing Rubio for brain damage, and at least one prepared to
testify about the impact of the pre-natal alcohol abuse by Rubio’s mother, no medical doctor had
diagnosed FAS or FASD when Rubio’s trial began.
1. State Habeas Claims & Evidentiary Hearing
In his 2013 Habeas Application, Rubio raised three claims related to FASD:
(1) “[H]e was denied the effective assistance of counsel, when trial counsel,
although fully aware that [his] mother consumed significant amounts of
alcohol during the pregnancy when she was carrying [him], failed to investigate
the possibility that [he] suffered from a fetal alcohol spectrum disorder”;
(2) Trial counsel’s failure to investigate FASD meant that he never “learn[ed] that
[Rubio] suffers from temporal lobe epilepsy (‘TLE’)” 5; and
(3) “[T]he habeas court failed to fund a complete investigation into the effects of
pre-natal alcohol abuse by [his] mother, thus preventing court appointed
habeas counsel from developing evidence demonstrating that [he] suffers from
a fetal alcohol spectrum disorder, as well as temporal lobe epilepsy, thus
rendering habeas counsel ineffective.”
(Habeas Record, Doc. 83–7, 4) He argued that various “red flags” should have led his trial counsel
to specifically investigate FASD, but they failed to do so. Examples of those “red flags” included:
•
Rubio’s bizarre behavior, particularly as recounted in his confession;
5 In his Federal Petition, Rubio abandons his argument relating to TLE.
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•
•
•
•
•
testimony in the competency trial that his mother consumed significant
amounts of drugs and alcohol while pregnant with him;
the April 2009 report by Dr. Fabian that Rubio’s mother’s alcohol use
heightened the “prenatal risk factors potentially affecting neurocognitive
development”;
a report from Dr. Eric Pinkerman identifying the prenatal alcohol abuse;
a letter and slideshow from Dr. Brams linking Rubio’s developmental issues to
his parents; and
reports by Dr. Martinez and Dr. Morris noting the history of drug and alcohol
abuse by Rubio’s mother.
(Habeas Record, Doc. 83–3, 26–35) When the state habeas court authorized $13,000 for the
appointment of FASD experts, Rubio secured the services of three additional professionals: Dr.
Natalie Novick Brown, an expert on maternal alcohol consumption; Dr. Richard S. Adler, a boardcertified psychiatrist; and Dr. Paul D. Connor, a psychologist with expertise in FASD. (Id. at 41)
Dr. Brown did not examine Rubio, but he opined that Rubio’s “history is typical of someone with
FAS or FASD.” (Id. at 44) Dr. Adler personally examined Rubio and diagnosed him with “Partial
Fetal Alcohol Syndrome, which is one of the Fetal Alcohol Spectrum Disorders (FASD).” (Habeas
Record, Doc. 83–7, 6) Even so, Dr. Adler stated that additional work was necessary to “confirm
the diagnosis from a functional perspective” and to rule out the possibility that other disorders
caused the observed issues. (Habeas Record, Doc. 83–4, 91) Dr. Connor reviewed the MRI
conducted before Rubio’s second trial and opined that his “neuropsychological functioning is
consistent with diagnostic guidelines for fetal alcohol syndrome” and that he suffered from mental
traits “frequently seen in individuals with FASD.” (Habeas Record, Doc. 83–7, 3) Dr. Connor
indicated that Rubio suffered deficits in four domains of neuropsychological functioning:
academics, attention, verbal learning and memory, and executive functioning.
And Dr.
Siddhartha Nadkarni testified, via affidavit, that the testing performed on Rubio after he entered
TDCJ for the second time “reveal[ed] abnormalities that are consistent with the possibility of
Temporal Lobe or other Epilepsy and possibly a developmental injury like that sustained in Fetal
Alcohol Syndrome.” (Id.)
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In August 2016, the state habeas court held an evidentiary hearing focused on whether
Rubio’s trial attorneys provided ineffective assistance of counsel by failing to investigate FAS,
FASD, and TLE. In addition to presenting the medical testimony previously summarized, Rubio
also offered the opinions of a jury selection expert and two attorneys who collectively argued that
trial counsel should have questioned prospective jurors with an eye toward a FASD defense.
(Habeas Record, Doc. 83–1, 25–59) And a mitigation-investigation specialist testified that trial
counsel should have investigated the possibility of FASD. (Id. at 132–34)
As his final witness, Rubio called his trial counsel, Ed Stapleton. He explained that he
explored the FASD defense, but decided to not pursue it at trial based on four principal reasons:
(1) Rubio did not have “any [of the] facial changes” associated with FASD; (2) Dr. Owens’ report
proved inadequate “to really develop any kind of organic brain damage of any type”; (3) Dr. Morris
did not identify any deficiencies in Dr. Owens’ report; and (4) the defense was “inadequately
funded”. 6 (Id. at 167–171) Stapleton believed that if the defense “had the time and the money to
keep digging”, they would have been able to develop a FASD defense. (Id. at 180) In the absence
of adequate resources, Stapleton judged the defense “inefficient”, although he did not “think it
was my fault”. (Id. at 187) And he testified: “Everything I did, I thought was the right decision at
the time, even if it was wrong.” (Id. at 193)
During Stapleton’s testimony, an outburst arose from Rubio’s lead attorney, Nathaniel
Perez. As Stapleton spoke about his representation of Rubio, Perez cried out, “We—we provided
ineffective assistance of counsel.” (Id. at 187) At a later point in the hearing, the presiding judge
commented on Perez’s outburst:
Well, I appreciate you falling on the sword. The problem, Nat, is that’s up to
whoever makes those findings. But I will tell you this. I—And I told you all this
right after the trial. I mean, there’s—there’s a lot to be said about how the case was
6 Rubio emphasizes that his attorneys “made the false assumption” that “some sort of facial changes” would be required
for FASD to exist. (Habeas Record, Doc. 83-1, 167) But as Stapleton’s own testimony reveals, defense counsel based
their decision to not pursue a FASD defense on various grounds, and not merely on the absence of dysmorphia.
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tried the second time around. But one thing that people around gonna tell you is
that when you were in the trenches, having to deal with what you had to deal with,
including, you know, not having enough funding, and those things, you all did what
you had to do as trial lawyers, and you—you worked with what you had.
I understand that there may have been deficiencies, and I understand that you all
may believe with hindsight that there were things that could have been done
differently. I’m not certain that even the cases that you win you don’t have some
doubts. “Maybe I should have done this. It would have been easier.” And so I
respect that, Mr. Perez. And I know that you and Mr. Stapleton have worked hard
on this case, and have worked on other cases before, and that you all respect each
other. So I—I’ll—the record will reflect that too.
(Id. at 203)
2. State Habeas Adjudication
After receiving evidence and testimony, the state habeas court found that Rubio’s trial
counsel “were aware that, throughout the time she was pregnant with [Rubio], . . . [his] mother
routinely consumed significant amounts of alcohol”. (Habeas Record, Doc. 83–7, 7) And they
knew about Rubio’s “bizarre behavior”, which included “a history of visual, auditory, and sensory
hallucinations.” (Id.) Based on that knowledge, Rubio’s counsel sought to identify “a causal link
between [his mother’s] alcohol use during her pregnancy” and his psychological problems. (Id.)
After reaching its findings of fact, the state habeas court denied Rubio’s claims regarding
his counsel’s failure to investigate FAS, FASD, or LTE. The court premised its decision on four
principal grounds.
First, the court found that, in light of the state of science’s understanding of FASD at the
time of Rubio’s trial, “[t]here [was] insufficient evidence to find that . . . the development,
investigation and presentation of a full-scale FASD based defense was reasonably available to trial
counsel.” (Id. at 8)
Second, trial counsel “conducted a thorough and detailed investigation into the [welldocumented] bizarre behavior by retaining numerous medical doctors and mental health
experts,” who collectively opined that “the cause of this behavior was something other than
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FASD.” (Id.) Given this information, trial counsel “made a strategic decision to not investigate
this issue any further.” (Id. at 9)
Third, evidence of FASD presented a dilemma to trial counsel, as such evidence could be
useful for mitigation, but would also pose a threat of future danger. When faced with such a
dilemma, a trial attorney “must necessarily make a strategy decision as to whether such evidence
should be utilized at trial.” (Id. ) This reality reinforced that Rubio’s counsel had merely made a
strategic decision regarding whether to present a FASD defense.
Finally, Rubio had “failed to demonstrate that there is a reasonable probability that, had
[his] trial counsel presented evidence that [Rubio] suffers from FAS or FASD, that the jury would
have answered the mitigation issue differently.” (Id. at 10) In particular, the state habeas court
emphasized “the evidence of the heinousness of the crime . . . as well as the evidence of aggravating
factors and [Rubio’s] future dangerousness, which was presented at trial.” (Id.)
Rubio appealed the decision to the TCCA, which affirmed the state habeas court’s rulings.
On the issue of FAS, FASD, and LTE, the TCCA concluded that the record supported the lower
court’s findings of fact, with the exception of the finding regarding the state of science as to FAS
and FASD at the time of Rubio’s trial. See Ex parte Rubio, 2018 WL 2329302, at *4 (“We find that
the record supports the trial court’s findings of fact and conclusions of law, with the exception of
finding twenty-two and the first paragraph of finding fifty-four.”).
Applying Strickland v.
Washington, 466 U.S.668 (1984), the Texas court first concluded that Rubio had failed to
demonstrate that trial “counsel’s representation fell below an objective standard of
reasonableness.” Id. at *3. The court then found that “in light of the heinous nature of the crime
and the mitigating evidence trial counsel presented, [Rubio] has not demonstrated that the result
of his trial would have been different but for counsel’s decision not to further investigate
FAS/FASD or epilepsy.” Id.
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B. AEDPA Review
Rubio now presents his FASD claim to this Court. He must show that no possibility exists
that “fairminded jurists could disagree that the state court’s decision conflicts with [the United
States Supreme] Court’s precedents.” Richter, 562 U.S. at 102; see also Owens v. Lumpkin, No.
22-40217, 2023 WL 4676842, at *4 (5th Cir. July 21, 2023) (“[W]e can only grant Owens’s petition
if all fairminded jurists would disagree with the Texas Court of Criminal Appeals.”). On the issue
of deficient performance, courts ask whether “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Strickland, 466 U.S. at
687. The Supreme Court has “declined to articulate specific guidelines for appropriate attorney
conduct.” Wiggins v. Smith, 539 U.S. 510, 521 (2003). Instead, a reviewing court “measure[s] . . .
attorney performance” for “reasonableness under prevailing professional norms.” Strickland, 466
U.S. at 688. The review is “highly deferential” and avoids “the distorting effect of hindsight” by
looking at “counsel’s challenged conduct on the facts of the particular case, viewed as of the time
of counsel’s conduct.” Id. at 689–90. In that light, federal courts “indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable assistance.” Id. at 689. As to
prejudice, Rubio “must show that all fairminded jurists would agree there was prejudice.”
Sanchez v. Davis, 936 F.3d 300, 307 n.39 (5th Cir. 2019) (emphasis in original). This standard
means that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different.” Strickland, 466 U.S. at 694.
Rubio has not made this showing. On the contrary, the Court finds that the relevant
evidence supports the state court’s decision.
First, the record demonstrates that trial counsel’s representation did not fall below an
objective standard of reasonableness. They investigated whether a causal connection existed
between Rubio’s mother’s substance abuse and the bizarre behavior that Rubio exhibited,
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obtaining assessments and opinions from numerous experts with different qualifications. Dr.
Fabian confirmed that Rubio’s mother had engaged in pre-natal alcohol use.
Dr. Owens
conducted a thorough evaluation of Rubio, including the review of an MRI, and found no “trauma”
or “evidence of organic neurological disease”. (Clerk’s Record, Doc. 76–12, 251) Given this report,
defense counsel could not “really develop any kind of organic brain damage of any type.” (Tr.
Trans., Doc. 83–1, 169) Even so, trial counsel retained Dr. Morris to review Dr. Owens’ report,
and he (Dr. Morris) found nothing amiss in Dr. Owens’ efforts. In short, multiple defense experts
at the time of Rubio’s trial opined that Rubio did not have brain damage. And the State’s expert,
Dr. Welner, concurred: “[Rubio’s] neuropsychological testing demonstrated that he had no
evidence of brain damage and that he had no evidence of brain disease.” (Tr. Trans., Doc. 74–19,
119)
The Fifth Circuit has explained that a trial attorney does not provide ineffective assistance
by failing to investigate FASD when a “qualified neuropsychologist . . . after extensive testing,
concluded that [the defendant] had no brain damage.” Gonzales v. Stephens, 606 F. App’x 767,
773 (5th Cir. 2015). “[R]easonably diligent counsel may draw a line when they have good reason
to think further investigation would be a waste.” See Rompilla v. Beard, 545 U.S. 374, 383 (2005).
And when faced with multiple defense expert’s credible conclusions, trial counsel need not
“canvass[ ] the field to find a more favorable defense expert.” 7 Dowthitt v. Johnson, 230 F.3d 733,
748 (5th Cir. 2000). In the present case, Rubio’s trial counsel obtained the evaluations and
conclusions of Drs. Fabian, Owens, and Morris, none of which supported further investigation for
FASD.
7 Rubio’s trial counsel actually sought additional funding to continue investigating the issue, but the trial court denied
the request.
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In addition, even in the context of the 2013 Habeas Application, Rubio relied on three
experts, but none of them conclusively diagnosed Rubio with FASD. At best, Dr. Adler diagnosed
Rubio with Partial FAS—a condition that includes some features of FAS—but he also indicated
that additional testing was necessary to confirm the diagnosis. In the end, the evidence on which
Rubio relied before the state habeas court does not prove that Rubio could have presented a strong
FASD defense. And as the state habeas court reasoned, any FASD defense would have presented
a dilemma. The evidence could prove useful for mitigation, but could also reveal a propensity for
future dangerousness. Overall, Rubio’s trial counsel “was entitled to formulate a strategy that was
reasonable at the time and to balance limited resources in accord with effective trial tactics and
strategies”. Richter, 562 U.S. at 107. Given the information available to them, defense counsel’s
decisions regarding a FASD defense fell within the parameters of reasonable strategic decisions
for defense counsel, and in no manner fell below objective standards of reasonableness.
Rubio likewise has not demonstrated that the TCCA reached the wrong conclusion when
assessing the prejudice prong of the Strickland standard, much less that fairminded jurists could
disagree that its decision conflicts with the applicable Supreme Court precedents. As an initial
challenge, Rubio argues that the TCCA applied the wrong standard. Specifically, he argues that
“[i]nstead of performing the prejudice analysis that Strickland requires—evaluating whether the
deficiency had a ‘reasonable probability’ of affecting the trial outcome[–the TCCA] instead
required Rubio to ‘demonstrate[] that the result of his trial would have been different but for
counsel’s decision not to further investigate[.]’ Ex parte Rubio, 2018 WL 2329302, at *7.” (Pet.,
Doc. 61, 94–95 (citation omitted))
Rubio’s argument, however, proves unpersuasive. The TCCA decision cited the relevant
section of Strickland. See Ex parte Rubio, 2018 WL 2329302, at *7 (citing Strickland, 466 U.S. at
694). And the court adopted the state habeas court’s recommendation, which included the precise
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language from the Supreme Court. (See State Habeas Decision, Doc. 83–7, 14) Based on the
entirety of the TCCA’s decision, it is evident that the single sentence that Rubio quotes represents
nothing more than “a shorthand method to refer to the correct standard.” Charles v. Stephens,
736 F.3d 380, 393 (5th Cir. 2013) (rejecting a similar argument); see also Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (“[R]eadiness to attribute error is inconsistent with the presumption that
state courts know and follow the law.”); Sussman v. Jenkins, 636 F.3d 329, 360 (7th Cir. 2011)
(“[W]e do not believe the court’s use of a ‘short-hand’ recitation of the Strickland test suggests
that it employed the incorrect standard.”).
Turning to the application of that standard, the query is whether a reasonable probability
exists “that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. The TCCA answered this question in the negative. Rubio
has not demonstrated that all fairminded jurists would disagree with that conclusion.
First, defense counsel placed extensive evidence of Rubio’s mental health before the
jurors. Although defense counsel did not expressly refer to FASD, they presented evidence of
similar negative effects from mental illness. It is true that evidence regarding FASD would have
presented some unique factors for the jury to consider, but its incremental impact is lessened by
the substantial evidence regarding Rubio’s mental illness. In addition, as the state habeas court
emphasized, evidence of FASD can pose “a significant double-edged problem” for attorneys
because it “is mitigating in the sense that it might support an inference that [a defendant] is not
as morally culpable for his behavior, but it also is aggravating in the sense that it might support
an inference that [he] is likely to continue to be dangerous in the future.” 8 Gates v. Davis, 660 F.
App’x 270, 278 (5th Cir. 2016).
8 Rubio’s defense team attempted to avoid the quandary by focusing on evidence of mental illness that allowed for the
amelioration of impulsivity and other negative effects through medication. (See Tr. Trans., Doc. 74–16, 234) In other
words, the mental-health evidence that the defense team provided to the jury presented a dulled double-edged sword.
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Finally, at trial, the Government emphasized the shocking nature of the crime, which is a
relevant factor in the Strickland prejudice analysis. See Carty v. Thaler, 583 F.3d 244, 263 (5th
Cir. 2009) (“In this re-weighing, the brutality of the crime is relevant but does not automatically
trump additional mitigating evidence.”); Martinez v. Quarterman, 481 F.3d 249, 259 (5th Cir.
2007) (“After considering all of the mitigating evidence, we hold that the additional mitigating
evidence was not so compelling, especially in light of the horrific facts of the crime, that the
sentencer would have found a death sentence unwarranted.”); Smith v. Quarterman, 471 F.3d
565, 576 (5th Cir. 2006) (“In the light of brutal and senseless nature of the crime, and all of the
other evidence of Smith’s violent conduct, it is unlikely that [the mitigating] evidence . . . would
have made any difference.”). At all stages of the present matter, no party has ever contested, and
no reasonable person could doubt, that this case involves the horrific killing of three children. The
TCCA concluded that, “in light of the heinous nature of the crime”, even when balanced by “the
mitigating evidence trial counsel presented”, Rubio had not shown prejudice. Ex parte Rubio,
2018 WL 2329302, at *3. In reaching this conclusion, the Texas court properly applied the law to
the facts of this case.
Ultimately, Rubio has not established that the TCCA, when concluding that Rubio’s
counsel did not provide ineffective assistance of counsel with respect to a possible FASD defense,
reached a conclusion that conflicts with applicable Supreme Court precedents. At the very least,
Rubio fails to show that fairminded jurists could disagree on that point. As a result, he falls short
of meeting his burden under AEDPA and is entitled to no relief on this claim.
IV.
Analysis of Procedurally Defaulted Claims
Rubio did not present his remaining nine claims in 2013 and, as a result, the TCCA has
never considered the merits of those challenges. Rubio included them in his 2016 Supplemental
Habeas Application and 2021 Habeas Application, but the Texas court declared the new claims a
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subsequent application and an abuse of the writ, dismissing the claims without reviewing their
merit. Ex parte Rubio, 2018 WL 2329302, at *5 (concerning new claims in 2016 Supplemental
Habeas Application); Habeas Record, Doc. 81–2, 6 (concerning 2021 Habeas Application)).
This history triggers procedural default, a rule that “bars federal habeas petitions where
‘the last state court to review the petitioner’s claims unambiguously based its denial on a state
procedural bar.’” Mullis, 47 F.4th at 387 (quoting Gonzales, 924 F.3d at 243). A Texas state court’s
decision to dismiss a habeas application on the grounds that it represents a successive petition
and an abuse of the writ constitutes “an independent and adequate state ground” that requires
the application of the procedural-bar doctrine to any federal habeas petition containing the same
claims. See Gutierrez, 590 F. App’x at 384 (quoting Hughes, 530 F.3d at 341).
Petitioners can overcome the procedural bar through various exceptions, but they bear the
burden of demonstrating that one applies. See McCleskey, 499 U.S. at 494. For example, a
petitioner may demonstrate (1) cause and actual prejudice or (2) that “a constitutional violation
has probably resulted in the conviction of one who is actually innocent.” Haley, 541 U.S. at 393
(cleaned up). When a petitioner challenges the death penalty imposed as a sentence, he can
demonstrate actual innocence by providing “clear and convincing evidence that, but for a
constitutional error, no reasonable juror would have found the petitioner eligible for the death
penalty under the applicable state law.” Busby, 925 F.3d at 710 (citing Sawyer, 505 U.S. at 336).
In the present case, Rubio claims that he can overcome the procedural bar for each of his
nine procedurally-defaulted claims. As previously explained, the Court groups his claims as
follows: (1) mental health (Claims One, Three, and Seven); (2) prosecutorial corruption (Claims
Four and Five); and (3) the State’s expert witnesses (Claims Six, Eight, Nine, and Ten). Within
each group, the Court will first analyze whether Rubio has overcome the procedural bar, and then
consider whether he would be entitled to relief even if he overcame that bar. See Trevino v. Davis,
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861 F.3d 545, 548 (5th Cir. 2017) (finding that while the petitioner overcame the procedural bar,
he was not entitled to relief on the merits).
A. Claims Regarding Mental Health
Rubio contends that he received ineffective assistance of trial counsel through their
failure: (1) to include a qualified mental health expert as an additional member of the defense
team (Claim One); (2) to properly investigate and prepare for the guilt and innocence phase
(Claim Three); and (3) to investigate and use evidence about Rubio’s mental health from his
period of incarceration between his two trials (Claim Seven). Rubio acknowledges that the
procedural bar applies to these claims, but argues that he overcomes it because his state habeas
counsel provided ineffective assistance of counsel by failing to raise these issues in the 2013
Habeas Application.
In 2012, the Supreme Court established that the ineffective representation by state habeas
counsel can constitute “cause” to overcome the procedural bar that precludes consideration of an
ineffective assistance of trial counsel claim. See Martinez v. Ryan, 566 U.S. 1 (2012). 9 To succeed
on such a theory, the petitioner must first demonstrate that his ineffective assistance of trial
counsel claim is “substantial—i.e., has some merit”. Cantu v. Davis, 665 F. App’x 384, 386 (5th
Cir. 2016); see also Murphy v. Davis, 737 F. App’x 693, 703 (5th Cir. 2018) (describing the test of
whether a claim is substantial as “whether the claim is debatable by reasonable jurists”). To show
that his claim has merit, the petitioner must satisfy the Strickland test—i.e., “(1) that counsel’s
performance was deficient; and (2) that such deficient performance prejudiced the defense.”
9 Respondent challenges Rubio’s attempt to submit the evidence that he presented for the first time in his 2021 Habeas
Application. Respondent argues that Rubio “negligently failed to develop their factual bases in state court” and that the
evidence was “negligently not presented to the state court in a procedurally correct manner”. (Answer, Doc. 84, 56)
Contrary to this position, federal law permits courts to consider “evidence outside the state record” in the limited
context of “establishing an excuse for procedural default” because of state habeas counsel’s representation. Mullis v.
Lumpkin, 70 F.4th 906, 910-11 (5th Cir. 2023); see also Segundo v. Davis, 831 F.3d 345, 351 (5th Cir. 2016). Still,
courts cannot take into account new evidence when determining the merits of the underlying claim. See Tong v.
Lumpkin, 90 F.4th 857, 866-67 (5th Cir. 2024).
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Beatty v. Davis, 755 F. App’x 343, 345 (5th Cir. 2018). The petitioner must then “show that habeas
counsel was ineffective in failing to present those claims in his first state habeas proceeding.”
Garza v. Stephens, 738 F.3d 669, 676 (5th Cir. 2013).
And finally, the petitioner must
demonstrate “that he was prejudiced by the deficient performance—that is, that there is a
reasonable probability that he would have been granted state habeas relief had the evidence been
presented in the state habeas proceedings.” Newbury v. Stephens, 756 F.3d 850, 872 (5th Cir.
2014); see also Canales v. Stephens, 765 F.3d 551, 571 (5th Cir. 2014). “The likelihood of a
different result must be substantial, not just conceivable.” Wessinger v. Vannoy, 864 F.3d 387,
391 (5th Cir. 2017) (quoting Richter, 562 U.S. at 112).
1. Claim One: Failure to Include Qualified Mental Health Expert on
Defense Team
Rubio argues that based on his pervasive and serious history of acute mental illness, “[n]o
defense team could adequately investigate and understand this case without having a person with
qualifying mental health expertise at its core.” (Pet., Doc. 61, 44) In particular, he characterizes
his defense team as presenting a “scattershot sentencing case”, and contends that an appropriate
mental-health expert “would have guided the defense through appropriate investigations, and to
the appropriate experts.” (Id. at 52) For example, he believes that such an expert would have
identified the need for:
further screening to explore neuropsychological abnormalities, especially in
relation to frontal lobe functioning, and adverse consequences from prenatal
alcohol exposure; a full neuropsychological battery concerning additional sources
of brain injury, trauma, and central nervous system disorder/impairment; and a
robust investigation into Fetal Alcohol Spectrum Disorders (“FASD”), using
appropriate medical, neuropsychological, and psychological tools.
(Id. at 53) Rubio claims that the absence of a guiding mental-health professional prejudiced him
at each phase: the competency hearing, the guilt/innocence trial, and punishment phase. “The
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deficiency was particularly prejudicial at the punishment phase, when Rubio would have needed
to convince only a single juror to spare his life.” (Id. at 52)
To overcome the procedural default on this claim, Rubio must demonstrate: (1) that he
presents a substantial claim–i.e., that under Strickland, his trial counsel’s representation fell
below an objective standard of reasonableness and that the deficiency prejudiced him; (2) that his
state habeas counsel’s failure to present this claim in the 2013 Habeas Application fell below an
objective reasonable standard; and (3) that had his habeas counsel presented the claim in 2013, a
reasonable probability exists that the state habeas court would have granted the relief that Rubio
seeks.
a. Substantial Claim: Deficient Performance
When arguing that his defense team’s representation fell below a standard of reasonable
performance by trial counsel, Rubio relies primarily on his contention that his defense team failed
to comply with guidelines from the American Bar Association and the State Bar of Texas. The
2003 ABA Guidelines instruct that an attorney defending his client against capital charges should
assemble a defense team consisting of at least two attorneys, a fact investigator, and a mitigationinvestigation specialist, with “at least one member qualified by training and experience to screen
individuals for the presence of mental or psychological disorders or impairments.” American Bar
Association, American Bar Association Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 952 (2003). The presence of a
qualified screening specialist ensures that the defense team can “recommend such further
investigation of the subject as may seem appropriate.” Id. at 957. The comments to the ABA
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Guidelines allow for the mental-health specialist to be either “one of the four individuals
constituting the smallest allowable team or an additional team member”. Id.
Similarly, the State Bar of Texas in 2006 promulgated the Guidelines and Standards for
Texas Capital Counsel, which also recommend counsel’s reliance on a mental-health-screening
specialist as a core member of the defense team. The Texas Guidelines recognize that “[c]ounsel’s
own observations of the client’s mental status . . . can hardly be expected to be sufficient to detect
the array of conditions . . . that could be of critical importance.” Guidelines and Standards for
Texas Capital Counsel, 69 Tex. B.J. 966, 977, Guideline 3.1(A) (2006). Accordingly, the Texas
Guidelines instruct that “mental health experts are essential to defending capital cases” because
issues such as “psychiatric impairment, combined with a history of physical and sexual abuse, are
common among persons convicted of violent offenses on death row.” Id. The Texas Guidelines,
like their ABA counterpart, allow for a defense team to be comprised of only four people, as long
as one member is “qualified by training and experience to screen individuals for the presence of
mental or psychological disorders or impairments.” Id.
Rubio’s trial attorneys knew of the Texas and ABA Guidelines, the former of which were
issued between Rubio’s first and second trials. Before the second proceeding, Rubio’s counsel
filed a Motion to Adopt the ABA Guidelines, although they clarified at the hearing that they did
not necessarily want the trial court to “adopt” the Guidelines, but rather wanted a “recognition of
their existence” as a “standard to know what [the defense] should be doing, and therefore, what
[resources the defense] should appropriately ask for”. 10 (Tr. Trans., Doc. 72–7, 29; Tr. Trans., Doc.
72–6, 4)
10 The record contains only the State’s response to and the trial court’s discussion of the motion, but does not appear to
include the motion itself. (See Clerk’s Record, Doc. 76-3, 53; Hearing, Doc. 72-7)
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Relying on the national and Texas professional standards, Rubio contends that “trial
counsel deficiently failed to include a person with qualifying mental health expertise on the
defense team.” (Pet., Doc. 61, 33) He contends that not only did his defense team’s failure to
retain a mental-health-screening expert fall below objective standards of reasonableness, but that
had they done so, a reasonable probability exists that the outcome of the trial or of the punishment
phase would have been different. In addition, he argues that his habeas counsel acted below an
objective standard of reasonableness by not raising this claim in the 2013 Habeas Application,
and that had habeas counsel done so, the state habeas court would have granted him relief.
Rubio’s argument, however, fails at the first step. He has not demonstrated that his trial
counsel’s conduct with respect to a mental health defense fell below an objective standard of
reasonableness.
For starters, while Rubio emphasizes the Texas and ABA Guidelines, the Supreme Court
has not adopted the guidelines as an “inexorable command with which all capital defense counsel
must fully comply” to provide constitutionally effective representation. Bobby v. Van Hook, 558
U.S. 4, 17 (2009) (internal quotation marks omitted). Courts consider professional guidelines as
instructive, but the Constitution itself imposes “one general requirement: that counsel make
objectively reasonable choices.” Van Hook, 558 U.S. at 9; see also Strickland, 466 U.S. at 688
(“The proper measure of attorney performance remains simply reasonableness under prevailing
professional norms.”). In that analysis, guidelines represent “only guides” with respect to an
attorney’s conduct. 11 Van Hook, 558 U.S. at 8.
11 Rubio cites two decisions for his argument that “[o]ther courts recognize that the norms embedded in ABA Guideline
4.1 require trial counsel to include an individual with qualifying mental health expertise as a core member of the defense
team.” (Reply, Doc. 87, 34 (citing Eaton v. Wilson, No. 09-CV-261-J, 2014 WL 6622512, at *33-36 (D. Wyo. Nov. 20,
2014) and Chatman v. Walker, 773 S.E.2d 192 (Ga. S. Ct. 2015))) But in both cases, the absence of a mental-health
member on the defense team represented only one feature of counsel’s deficient representation. Neither court found
that a constitutional violation occurred based solely on the absence of a mental-health screening specialist.
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In addition, Rubio misconstrues the ABA and Texas Guidelines when he contends that
“the mitigation specialist and the person having mental-health-screening expertise must be
different people”. (Pet., Doc. 61, 46) (emphasis added). Both Guidelines require a defense team
consisting of two attorneys, an investigator, and a mitigation specialist. The comments to the ABA
Guidelines expressly allow for the mental-health screening specialist to be either “one of the four
individuals constituting the smallest allowable team or an additional team member”. See id.
(emphasis added). And the Texas Guidelines implicitly allow one of the four team members to
function as the screening expert, as long as the person is “qualified by training and experience to
screen individuals for the presence of mental or psychological disorders or impairments”. Tex.
Guidelines, 69 Tex. B.J. at 967. Neither the ABA nor the Texas Guidelines precludes the
mitigation specialist–or any other of the required four defense team members–to fulfill the
recommended presence of a mental-health screening expert.
Moreover, even taking into account the ABA and Texas Guidelines, the record does not
support that the representation by Rubio’s defense team fell below an objective standard of
reasonableness on the issue of Rubio’s mental health. In preparation for his second trial, Rubio’s
counsel assembled a team that included consideration of Rubio’s past and current mental-health
concerns. In particular, they retained Carmen De La Rosa Fisher to serve as a mitigation specialist
and to screen for mental-health issues. (Habeas Record, Doc. 83–1, 168–171) Ms. Fisher held a
Master’s Degree in social work and a social worker license. (Id. at 170) Trial counsel believed that
Ms. Fisher’s experience and education enabled her to satisfy the Texas and ABA Guidelines:
Ms. Fisher was extremely good at what she did, and people liked her a lot. She was
great at going through CPS records, and that sort of thing. I was assuming that she
could meet the requirements that the guidelines have. I think both the Texas and
the ABA guidelines require that you have a mental health professional on your
staff. I was assuming that she could fill that role.
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(Id. at 168–69) In addition, defense counsel consulted with numerous other experts regarding
Rubio’s mental health. (See id. at 168–170; see also State Habeas Court Findings, Doc. 83–7, 8
(noting that Rubio’s trial counsel retained “numerous medical doctors and mental health experts”
in their attempt to understand his “bizarre behavior”)) And one of Rubio’s lawyers, Stapleton,
possessed significant experience and knowledge regarding mental health concerns among
criminal defendants. He had published regarding “handling mental health problems . . . in
criminal cases” and “had been working with psychologists, and psychiatrists, and neurosurgeons,
and neuropsychs” for many years. (Habeas Record, Doc. 83–1, 165) Based on his experience,
Stapleton believed he could “fill in just with” his discussions with experts. (Id. at 170) Whether
or not his belief proved correct, his experience at the very least provided him a solid foundation
on which to communicate with the various experts and to consider issues that they identified
regarding Rubio’s mental health.
Rubio characterizes Ms. Fisher as unqualified to serve as the mental-health-screening
specialist, but his criticism falls short. The professional standards do not prescribe specific
qualifications for such a specialist. The ABA Guidelines specify only that the person be “qualified
by training and experience to screen individuals for the presence of mental or psychological
disorders or impairments.” ABA Guidelines, 31 Hofstra L. Rev. at 952. Similarly, the Texas
Guidelines require no specific licensure or educational background. As for Ms. Fisher, Rubio does
not demonstrate that her Master’s Degree in social work and license as a master social worker
represented inadequate qualifications. Indeed, courts have recognized that a licensed clinical
social worker can possess the requisite qualifications “to diagnose and treat mental disorders.”
Lucio v. Lumpkin, 987 F.3d 451, 477 (5th Cir. 2021); see also Lucio v. State, 351 S.W.3d 878, 898
(Tex. Crim. App. 2011) (finding that a clinical social worker with “a master’s degree in social work”
and “the highest national clinical license” enabled her “to do diagnosis and treatment of mental
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health disorders”); Kimberlin v. State, No. 05-18-00018-CR, 2019 WL 1292471, at *6 (Tex. App.–
Dallas, 2019) (recognizing that as “a licensed clinical social worker” in Texas, the witness could
“diagnose and treat mental and emotional disorders”). In fact, Rubio’s state habeas counsel relied
on the testimony of a social worker, Gina Vitale, who opined as to the “red flags” that she would
have identified had she been on Rubio’s trial team. (See Hearing, Doc. 83–1, 131–32) Ms. Vitale’s
qualifications resemble those of Ms. Fisher’s, and Rubio does not fault the reliance of state habeas
counsel on Ms. Vitale’s opinions. Moreover, while Rubio’s trial counsel, Stapleton, testified to the
state habeas court that he should have retained an individual with a Ph.D. in psychology as the
mental-health screening expert, he also did not “have any regrets about picking” Ms. Fisher and
viewed that selection as a “strategic decision”. (Id. at 193) In addition, no authority requires that
the mental-health screening expert possess a Ph.D.
By the time of trial, numerous experts had examined Rubio, allowing his counsel to
evaluate his mental health from psychological, neurological, and social bases. For example, Dr.
Fabian, a forensic and clinical psychologist, performed a forensic psychological evaluation of
Rubio for the express purpose of developing mitigating evidence. (Clerk’s Record, Doc. 76–13,
179) According to the findings of the state habeas court, the experts rendered “various diagnoses”,
including “delusional disorder with other psychotic features; severe learning disorder;
schizophrenia, paranoid type; major depressive disorder, recurrent; inhalant dependence;
cannabis abuse; psychotic disorder NOS (not otherwise specified); and, Attention Deficit
Hyperactivity Disorder (ADHD).” (State Habeas Court Decision, Doc. 83–7, 8)
Rubio also relies on new evidence that he submits for the first time to this Court–namely,
reports from Dr. Bhushan Agharkar and Dr. Robert Ouaou. The former identifies areas of concern
which he claims would have alerted counsel to “the need to work with experts in various
disciplines related to Rubio’s mental health.” (Pet., Doc. 61, 52). And Dr. Ouaou offers that had
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Rubio’s trial counsel retained an expert such as himself, the expert would have “administered a
complete neuropsychological battery to determine whether Rubio has brain damage.” (Id. at 47)
As a threshold matter, Rubio cannot rely on this new evidence to show that his claim is
substantial. See Tong v. Lumpkin, 90 F.4th 857, 866-67 (5th Cir. 2024) (refusing to consider
evidence outside the state court record to decide if an inmate’s underlying Strickland claim was
substantial). A federal court considering a § 2254 habeas petition cannot consider evidence that
was not properly placed before the state courts, unless the claim relies on “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable;” or is based on “a factual predicate that could not have been previously
discovered through the exercise of due diligence”. 28 U.S.C. § 2254(e)(2)(A). Additionally, the
petitioner must demonstrate that “the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense.” Id. at § 2254(e)(2)(B). And the
petitioner cannot evade these requirements by arguing that state habeas counsel was ineffective
for failing to introduce the evidence in the state court proceedings. Shinn v. Ramirez, 596 U.S.
366, 382 (2022) (“[S]tate postconviction counsel’s ineffective assistance in developing the statecourt record is attributed to the prisoner.”) The Section 2254(e)(2) standard “is a stringent one”
reserved for “extraordinary cases”, Shinn, 596 U.S. at 371, and Rubio has not demonstrated that
he meets it. He does not rely on a new constitutional rule and has not shown that the proposed
evidence was previously unavailable to him even after the exercise of due diligence. Instead,
Rubio blames his state habeas counsel for not developing this evidence in those proceedings. (Pet.,
Doc. 61, 68–69) But this argument, by its very nature, concedes that the evidence was then
available to him. See Newbury, 756 F.3d at 869 (“[T]he fact that Newbury now claims that state
habeas counsel should have presented this evidence in the state habeas proceedings necessarily
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constitutes an admission that the evidence was available at that time.”). Based on these legal
principles, the Court cannot consider the new evidence that Rubio offers.
In any event, even if the Court considered the evidence, neither Dr. Agharkar nor Dr.
Ouaou present testimony that prove material to Claim One. As previously explained, Rubio’s trial
counsel retained various mental health experts, none of whom concluded that Rubio suffered
from brain “trauma” or “neurological disease.” (Clerk’s Record, Doc. 76–12, 253) Trial counsel
had a right to rely on these experts’ views, as the Constitution imposes no requirement that
attorneys “scour the globe on the off chance something will turn up.” Rompilla, 545 U.S. at 383;
see also Segundo v. Davis, 831 F.3d 345, 352 (5th Cir. 2016). The fact that other experts can
review the record in hindsight and identify additional areas of inquiry does not in itself reflect that
trial counsel’s representation fell below an objective standard of reasonableness.
Rubio also presents a declaration from his state habeas counsel, who states: “I did not
contact or speak with Rubio’s trial counsel until just before the evidentiary hearing, so I was not
aware that Mr. Stapleton recognized that his mitigation specialist did not have the expertise to fill
the role required by the ABA Guidelines. Had I known this, l would have raised this claim in
Rubio’s state habeas application.” (Habeas Record, Doc. 81–4, 55) Contrary to Rubio’s argument,
however, an attorney falling on his sword in retrospect is not dispositive. “After an adverse verdict
at trial even the most experienced counsel may find it difficult to resist asking whether a different
strategy might have been better, and, in the course of that reflection, to magnify their own
responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the
objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.”
Harrington, 562 U.S. at 109–10; see also Rabe v. Thaler, 649 F.3d 305, 309 (5th Cir. 2011) (“A
court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.
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The court should recognize that counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional judgment.”
(cleaned up)). Even if the Court considered the declaration of David A. Schulman, this evidence
would not lead to the conclusion that Rubio’s habeas counsel’s representation fell below an
objective standard of reasonableness.
Ultimately, Rubio has not demonstrated that his trial counsel’s decisions regarding the
members of the defense team and their investigation of mental health defenses fell below the
applicable standard. Not only did Stapleton himself have substantial experience regarding mental
health issues in capital cases, but he and Rubio’s other counsel, Perez, obtained the expertise of
specialists, including Ms. Fisher, and reasonably believed at the time that she was qualified to
screen Rubio for mental health concerns. The record supports the conclusion that Rubio’s trial
counsel made decisions that satisfied any applicable standard of reasonableness.
b. Substantial Claim: Prejudice
Even if Rubio had demonstrated that his defense team’s representation fell below an
objective standard of reasonableness by not including a qualified mental health screening expert,
he cannot show that the failure prejudiced him. Rubio must demonstrate that “under Texas’s
capital sentencing statute, the additional mitigating evidence is so compelling that there is a
reasonable probability that at least one juror could have determined that because of the
defendant’s reduced moral culpability, death is not an appropriate sentence.” Tong, 90 F.4th at
866. “The likelihood of a different result must be substantial, not just conceivable.” Id. In making
this determination, a court must “reweigh the evidence in aggravation against the totality of
available mitigating evidence.” Canales v. Davis, 966 F.3d 409, 412 (5th Cir. 2020); see also
Smith v. Spisak, 558 U.S. 139, 154 (2010) (finding that the defendant was not prejudiced by
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counsel’s failures in light of the horrific nature of the crime as well as the defendant’s “boastful
and unrepentant confessions and his threats to commit further acts of violence”).
The record reflects that at each stage of the proceedings–i.e., the competency hearing, the
guilt-innocence trial, and the punishment phase–the defense team presented evidence regarding
Rubio’s mental health. He fails to demonstrate that had his defense team hired a different mentalhealth expert, they would have developed evidence sufficiently distinct from the evidence
admitted in these proceedings so as to make a difference in the result of any of them. In addition,
at the guilt-innocence trial and the punishment phase, the State presented substantial evidence
of the crime’s appalling nature. The jury was entitled to consider this evidence when determining
guilt-innocence, as well as at the punishment phase. See Nelson v. Lumpkin, 72 F.4th 649, 662
(5th Cir. 2023) (reasoning that given the brutal circumstances of the murder, the defendant was
not prejudiced by counsel’s failure to develop certain mitigating evidence); Luna v. Lumpkin, 832
F. App’x 849, 853 n.1 (5th Cir. 2020) (explaining that to determine whether prejudice existed in
a Texas death penalty case, courts “reweigh the mitigation evidence—what was presented at trial
as well as what should have been—against the aggravating evidence”).
Rubio has not
demonstrated that in light of the crime’s abhorrent nature, any omitted mental-health evidence
or defense would have altered the outcome.
c. State Habeas Counsel’s Performance
To succeed on his procedurally-defaulted claim, Rubio must also demonstrate that his
state habeas counsel acted below an objective standard of reasonableness by not presenting the
claim in the 2013 Habeas Application. And he would have to show that had his state habeas
counsel presented such a claim, “there is a reasonable probability that he would have been granted
state habeas relief”. Newbury, 756 F.3d at 872; see also Mamou v. Davis, 742 F. App’x 820, 828
(5th Cir. 2018).
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As to the first prong, Rubio must demonstrate that his state habeas counsel’s “decision not
to bring specific claims fell outside of ‘professional norms’” that were “prevailing when the
representation took place.” 12 Ayesta v. Davis, 933 F.3d 384, 389 (5th Cir. 2019) (cleaned up).
Habeas counsel may engage in “winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.” Id. at 394 (quoting Jones v. Barnes, 463
U.S. 745, 751–752 (1993)).
Rubio fails to satisfy the controlling standard. His state habeas counsel consisted of two
attorneys and a mitigation expert. They reviewed a record that contained extensive evidence
regarding Rubio’s mental health, and ultimately presented a 109-page application that raised six
challenges. In the first three claims, they focused on FASD, obtaining $13,000 to conduct an
investigation into the issue. At the hearing, they admitted stipulated affidavits from four FASD
experts, and “offered the live testimony of five witnesses, including a trial consultant with
expertise in jury selection, two attorneys with expertise in capital murder trial work, a mitigation
specialist, and [Rubio’s] second-chair trial attorney [Stapleton] who had organized and directed
the defense’s ‘team of experts.’” Ex parte Rubio, 2018 WL 2329302, at *3. In light of these
thorough efforts, the record does not demonstrate that they acted below an objective standard of
reasonableness when deciding what issues to present in the 2013 Habeas Application.
d. Prejudice in State Habeas Proceedings
Rubio also does not show that had his state habeas counsel presented Claim One in his
2013 Habeas Application, the state habeas court would have granted him the relief he requests.
The state habeas court expressly noted that Rubio’s trial counsel had retained various experts who
examined Rubio and opined as to his mental health, in particular with respect to his “bizarre
12 The Court’s conclusion that Rubio’s Claim One is not substantial naturally defeats his argument that his state habeas
counsel should have presented the claim to the state habeas court. See Slater v. Davis, 717 F. App’x 432, 438 (5th Cir.
2018) (“Cause is not satisfied just because habeas counsel failed to raise very nonfrivolous claim.”). In this section, the
Court assumes for purposes of the analysis that Claim One is substantial.
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behavior”. Rubio argued that his trial team should have conducted a more thorough investigation
of FASD, but the state habeas court rejected that argument, explaining that trial counsel had
“investigate[d] the effects of prenatal alcohol abuse on [Rubio].” (State Habeas Court Findings,
Doc. 83–7, 14) In the same vein, had Rubio included Claim One in the 2013 Habeas Application,
his argument would have been very similar–i.e., he would have argued that while his trial team
retained a mental health expert and mitigation specialist, and one of his attorneys possessed
extensive experience with mental-health defenses in capital cases, his defense team should have
also retained an additional mental-health screening expert. The state habeas court found such an
argument with respect to FASD unpersuasive.
Rubio provides no evidence or argument
demonstrating that an analogous argument with respect to including a mental-health screening
expert on the defense team would have succeeded.
As to Claim One, Rubio neither shows that he presents a substantial claim nor that his
state habeas counsel provided ineffective assistance of counsel. As a result, he is not entitled to
relief on this claim.
2. Claim Three: Failure to Adequately Investigate and Present an
Insanity Defense
In his third claim, Rubio faults trial counsel’s efforts “to adequately investigate and
prepare [his] sanity defense.” (Pet., Doc. 61, 104) Rubio identifies two specific errors that his
counsel allegedly committed. First, he alleges that his trial attorneys misunderstood the legal
standards for an insanity defense, resulting in “both testifying defense experts appl[ying] the
incorrect legal standard in assessing [his] sanity”. (Id.) Second, Rubio claims that trial counsel
failed to supply his experts or to offer into evidence “critical information about the case”, such as
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his “TDCJ and jail records.” (Id.) These failures, Rubio contends, deprived him of his Sixth
Amendment right to effective counsel. 13
As Claim Three is procedurally defaulted, Rubio must demonstrate: (1) that he presents a
substantial claim–i.e., that under Strickland, his trial counsel’s representation fell below an
objective standard of reasonableness and that the deficiency prejudiced him; (2) that his state
habeas counsel’s failure to present this claim in the 2013 Habeas Application fell below an
objective reasonable standard; and (3) that had his habeas counsel presented the claim in 2013, a
reasonable probability exists that the state habeas court would have granted the relief that Rubio
seeks.
a. Substantial Claim: Deficient Performance
Rubio argues that he presents a substantial claim because his trial counsel performed
below an objectively reasonable standard by not understanding the law for a not-guilty-by-reasonof-insanity defense, leading to the improper questioning of witnesses and an inadequate
preparation of Rubio’s expert witnesses. Rubio must show that this argument satisfies the
Strickland test of deficient performance and prejudice.
As an initial matter, when viewing the record as a whole, Rubio fails to demonstrate that
his trial counsel either misunderstood the legal standard for his insanity defense or conducted
witness examination or the preparation of expert witnesses based on an incorrect understanding.
In Texas, the Penal Code prescribes that it “is an affirmative defense to prosecution that, at the
time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know
13 Rubio also mentions other alleged errors by trial counsel which are unrelated to the main thrust of his claim.
In
particular, he contends that (1) “trial counsel had not flagged for Dr. Valverde the testimony of Moreno, who stated that
Rubio claimed to know how to commit the ‘perfect crime’ by feigning insanity”; (2) “Dr. Valverde [had not] been able
to review Angela Camacho’s statements about the night of the incident”; (3) “Dr. Morris had not been made aware that
Camacho had claimed that Rubio talked about killing the children months before the incident”; (4) Dr. Morris had not
“been able to interview Moreno”; and (5) “Dr. Morris had [not] been unable to review Dr. Welner’s interview with
Rubio.” (Pet., Doc. 61, 30–31) He devotes limited attention to these specific allegations, and the Court finds that none
proves significant or satisfies the Martinez or Strickland standards.
54 / 97
App. B. 54
Case 1:18-cv-00088 Document 94 Filed on 04/05/24 in TXSD Page 55 of 97
that his conduct was wrong.” TEX. PENAL CODE § 801. Texas courts have rendered clear that the
correct question is whether the defendant understood that his conduct was legally wrong, and not
just morally wrong. See Ruffin, 270 S.W.3d at 592 (“Thus, the question for deciding insanity is
this: Does the defendant factually know that society considers this conduct against the law, even
though the defendant, due to his mental disease or defect, may think that the conduct is morally
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