Rubio v. Davis
Filing
94
ORDER AND OPINION entered denying 61 Petition for Writ of Habeas Corpus with prejudice. The Court will separately issue a Final Judgment in accordance with this Order and Opinion. (Signed by Judge Fernando Rodriguez, Jr) Parties notified. (sac1)
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.
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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.
This Court appointed counsel to represent Rubio in any federal habeas challenge to his conviction and sentence.
(Order, Doc. 3)
1
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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.
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.
4
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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:
•
5
Rubio’s bizarre behavior, particularly as recounted in his confession;
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).
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.
8
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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)
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)
10
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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.
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.
11
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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
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.
12
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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
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.
13
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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
justified?”).
In Rubio’s first trial, his counsel presented an insanity defense, albeit unsuccessfully. In
his direct appeal from that first conviction, Rubio squarely raised the issue of this defense. The
TCCA summarized the law concerning the defense, including that “[i]n the context of the insanity
defense, the word ‘wrong’ means illegal.” Rubio, 2012 WL 4833809, at *1. When considering
whether the trial record contained evidence to support the jury’s decision to find that Rubio was
not insane, the appellate court observed that “the trial record contains evidence that [Rubio] was
legally insane at the time of the offense, but it also contains substantial evidence that he was not
legally insane.” Id. Given the conflicting evidence, the credibility and weight of which rested in
the province of the jury, the court rejected Rubio’s appeal on this point. Years later, as Rubio’s
counsel for his second trial prepared for his defense, they had the benefit of the TCCA’s decision,
including its unambiguous recitation of Texas law regarding an insanity defense. In other words,
the TCCA’s ruling provided guidance for trial counsel to fashion a defense in the second trial.
And Rubio’s trial counsel demonstrated their correct understanding of Texas’ insanity
defense throughout the trial. In voir dire, counsel discussed the insanity defense with the venire.
The prosecution, which usually questioned individual venire members first, consistently indicated
that “case law has defined that ‘wrong’ means illegal.” (Tr. Trans., Doc. 74–4, 30) When Rubio’s
counsel conducted his voir dire, he never intimated that his understanding of the insanity defense
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differed in any way. For example, he never asked questions indicating that he believed an insanity
defense under Texas law concerned whether the defendant considered the crime morally wrong.
Upon the selection and empaneling of the jury, the trial commenced.
And in the
questioning of expert witnesses Dr. William Mark Valverde and Dr. Raphael Morris, Rubio’s trial
counsel again demonstrated that they understood the correct legal standard. As to Dr. Valverde,
Rubio’s trial counsel first elicited his opinion that Rubio suffered from psychosis. The following
questions walked through the legal definition of an insanity defense:
Q.
Now, the other portion of that affirmative defense, as far as beyond the fact
of the severe mental disease or defect, is that at the time of the commission of the
murders, when the conduct charged, which is the murder of the three children, at
the time that the three children were murdered, did John Rubio know that his
conduct was wrong?
A.
In my opinion, no.
***
Q.
[ ] Now, there is going to be an issue–I would like you to assume–we don’t
have the law yet from the judge, but I would ask you to assume that there is some
Texas case law that says, all right, knowledge of “wrong” means knowledge of
“illegal.” . . . All of those indicate a knowledge that he would be arrested and that
his conduct was contrary to law, that the police would come and get him, that his
conduct was illegal. How does that reconcile with your opinion and belief that at
the time he committed the murders, he did not know that his conduct was wrong?
A.
Okay. Mr. Stapleton, my response was that based on his delusion, he did
not believe at the time that his conduct was wrong. Did he know that others would
view it as wrong? Did he know that others might view it as illegal? Perhaps. But
that doesn’t address the issue of the state of mind of John Allen Rubio at that
moment in time. It is what he felt had to be done regardless of the consequences.
(Tr. Trans., Doc. 74–16, 49–50) In this exchange, Rubio’s counsel led Dr. Valverde through
questions based on the correct standard for an insanity defense under Texas law.
The same occurred with Dr. Morris, a forensic psychiatrist who met with Rubio numerous
times before preparing his 2009 report.
Dr. Morris interviewed people who knew Rubio,
considered psychological test results, and reviewed reports made by previous mental health
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experts. Dr. Morris had testified approximately ten times in other cases about insanity. (Id. at
145)
Trial counsel’s questioning of Dr. Morris followed the same pattern. Dr. Morris first
opined that Rubio suffered from a severe mental disease or defect–namely, schizophrenia.
Rubio’s counsel then asked Dr. Morris whether at the time of the murders, Rubio knew “that his
conduct was wrong”. (Id. at 144) Dr. Morris answered that Rubio “did not know that it was
wrong.” (Id. at 145) Counsel then honed in on the legal definition of insanity:
Q.
Now, later–and whatever the actual sequence was, later we have, “Arrest
me. What more do you want? I killed the kids.” There is that presentation to the
police that he knew they were illegal. You are aware of that?
A. Yes, I am.
Q. All right. And so how does that fit in with your opinion that at the time of the
killings he did not know that the conduct was wrong?
(Id. at 145) The court sustained an objection to Dr. Morris’s initial response, but in the end, he
testified that “at the time that he (Rubio) is actually doing it, in my opinion, he is not able to think
about right and wrong at that moment.” (Id. at 146) As with Dr. Valverde, the questioning of Dr.
Morris by Rubio’s trial counsel reveals a proper understanding of the insanity defense under Texas
law. Even on cross examination, the State noted that Dr. Morris’s report referenced Texas Penal
Code § 8.01 for the definition of insanity, and Dr. Morris testified on cross examination that he
kept this legal definition in mind when evaluating Rubio. (Id. at 160) Dr. Morris acknowledged
that his report also referenced whether Rubio knew that his conduct was “morally wrong”, but he
clarified that he had not had time to amend that language. (Id. at 178–79) Although the State
challenged Dr. Morris’s testimony in closing argument by contending that he had applied an
incorrect standard (see Tr. Trans., Doc. 74–20, 126), the totality of his testimony reveals, at most,
that he made differing statements on the issue.
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Ultimately, the record demonstrates that Rubio’s trial counsel understood the legal
standard for an insanity defense under Texas law, and that they questioned witnesses and
prepared experts based on this correct understanding. While Rubio presents instances in which
the distinction between legally wrong and morally wrong became blurred, the overall picture
remains clear. Rubio fails to show that his trial counsel’s performance was deficient on this
issue. 14
b. Substantial Claim: Prejudice
Even if Rubio had demonstrated that his defense team’s representation fell below an
objective standard of reasonableness in its preparation for and presentation of an insanity
defense, he cannot show that the failure prejudiced him. The testimony regarding Rubio’s
insanity defense at most included statements based on both a “legally wrong” and a “morally
wrong” standard. But Rubio presents no convincing argument that had the jury not heard the
competing testimony based on a “morally wrong” standard, it would have found him not guilty by
reason of insanity. On the contrary, the jury also heard ample evidence based on the correct
“legally wrong” standard, and choose to not accept it. And the jury heard substantial evidence
supporting the conclusion that Rubio understood that his actions were legally wrong. This
evidence supported the jury’s rejection of an insanity defense, and Rubio has not carried his
burden to show that removing a few references to an incorrect definition of insanity would have
led the jury to disregard the evidence controverting his insanity defense.
Given that Rubio fails to show that his counsel engaged in deficient performance, and that
any deficient performance prejudiced him, he has not demonstrated a substantial issue as to
Claim Three.
14 Rubio includes, as part of Claim Three, the argument that trial counsel failed to “investigate and present information
related to Rubio’s documented history of mental illness in TDCJ and jail records”. (Pet., Doc. 61, 109–117) He presents
the same argument as part of his Claim Seven, and the Court addresses that argument at length when considering that
claim. See infra., Sect. IV.A.3. As explained in that section, Rubio is not entitled to relief based on this argument.
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c. State Habeas Counsel’s Performance
To overcome the procedural bar as to Claim, Rubio must also demonstrate that his state
habeas counsel’s failure to present this claim in the 2013 Habeas Application fell below an
objective reasonableness standard. The record does not support such a conclusion. Rather, the
record demonstrates that Rubio’s trial counsel understood the legal standard for an insanity
defense under Texas law and prepared for trial based on that correct understanding. While the
record contains some references to a “morally wrong” standard, the instances are few and are
balanced by unambiguous statements by witnesses and Rubio’s trial counsel based on the correct
standard. State habeas counsel reviewed a record that presented a mixed and, in the ultimate
analysis, a weak claim. When considering whether to present an issue on habeas, counsel acts
reasonably by electing to not pursue those deemed dubious. See Kossie v. Thaler, 423 F. App’x
434, 437 (5th Cir. 2011) (“An appellate attorney need not, and should not, raise every nonfrivolous
claim, but rather should ‘winnow out weaker arguments’ to maximize the likelihood of success on
appeal.”). Rubio has not demonstrated that his habeas counsel’s decision to not present Claim
Three in the 2013 Habeas Application fell below an objective standard of reasonableness.
d. Prejudice in State Habeas Proceedings
Finally, Rubio must show that had his habeas counsel presented Claim Three in the 2013
Habeas Application, a reasonable probability exists that the state habeas court would have
granted the relief that Rubio seeks. “The likelihood of a different result must be substantial, not
just conceivable.” Wessinger, 864 F.3d at 391 (quoting Harrington, 562 U.S. at 112). Rubio fails
to make this showing. On the contrary, the controverted nature of the evidence on the issue of an
insanity defense renders it highly unlikely that the habeas court would have agreed with Rubio on
this claim.
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3. Claim Seven: Failure to Use Mental Health Evidence from Prior
Incarceration
Rubio also argues that his “Sixth Amendment right to counsel was violated because the
defense failed to investigate and use evidence related to Rubio’s mental health during his prior
incarceration.” (Pet., Doc. 61, 155) In particular, he alleges that his incarceration between his two
trials “generated a trove of medical records from both TDCJ and the county jails [that]
consistently documented his severe mental illness and cognitive impairment”. (Id.) By failing to
uncover these records in a timely manner and not providing them to Rubio’s experts, his trial
counsel “allowed the State to leave the impression that Rubio went largely unmedicated for the
better part of a decade without any significant mental health symptomology.” (Id.) In particular,
Rubio contends that the records would have enabled his trial counsel to controvert Dr. Welner’s
trial testimony that Rubio was not on antipsychotic medication while incarcerated and that Rubio
did not “experience[e] persistent delusions and hallucinations.” (Reply, Doc. 87, 74) According
to Rubio, the records “completely contradict[ ]” Dr. Welner’s testimony because they “document[]
severe mental health issues” and “show that Rubio was on antipsychotics and antidepressants for
nearly the entire time between his first trial in 2003 and his return to county jail in 2007.” (Pet.,
Doc. 61, 110)
As Claim Seven 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
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reasonable probability exists that the state habeas court would have granted the relief that Rubio
seeks. 15
a. Substantial Claim: Deficient Performance
To present a substantial claim, Rubio bears the burden to show that his trial counsel’s
handling of the prison records fell below an objective standard of reasonableness. He does not
meet this burden.
Rubio’s argument turns on his contention that his trial counsel obtained the prison records
in an untimely manner–i.e., on the eve of trial. The record, however, includes references to the
TDCJ records at the competency hearing. (See Comp. Trial, Doc. 73–2 at 32; Comp. Trial, Doc.
73–1, 152; Clerk’s Record, Doc. 76–10, 216) And Rubio appears to acknowledge that his trial
counsel possessed the prison records before that proceeding. (See Initial Reply, Doc. 41, 80)
Importantly, the competency hearing occurred four months before the guilt-innocence phase,
which provided Rubio’s trial counsel ample time to review and utilize the prison records in the
manner they thought best suited to their client’s interest.
At trial, Rubio’s counsel had to determine whether and, if so, how to use the prison records.
Rubio highlights various portions of those records to argue that they show that he was prescribed
mental health medications for several years while in prison between his two trials, and that he
exhibited behavior consistent with a severe mental health illness. But he cannot contest that the
record also contains evidence indicating that Rubio often refused to take the prescribed
medication. For example, Dr. Troy Martinez, an expert that the trial court appointed for the
competency trial, reported that Rubio told him that “[w]ith the exception of taking an antidepressant until he stopped it about 8 months ago, [Rubio] reports having refused all other
In connection with Claim Seven, Rubio relies on several submitted exhibits, such as an affidavit indicating that TDCJ
provided the prison records to Rubio’s trial counsel in February 2010. (See Doc. 24-1, 210) But he fails to show that he
relies on a new constitutional rule or that the proposed evidence was previously unavailable to him even after the
exercise of due diligence. As a result, the Court will not consider this new evidence. See 28 U.S.C. § 2254(e)(2).
15
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psychotropics for the past few years with the possible exception of one day about 18 months ago.”
(Clerk’s Record, Doc. 76–10, 218) Similarly, Dr. Morris noted that Rubio “refused antipsychotic
medications, mostly due to the sedating effects.” (Clerk’s Record, 76–11, 77) Rubio’s counsel had
to balance this mixed bag. While Rubio was prescribed mental health medications during his
incarceration between trials, and this fact could support his insanity defense, if he raised the issue
as part of that defense, the State could offer evidence that he consciously refused the medication,
allowing the jury to draw negative inferences from his refusal.
The prison records also contain differing data concerning Rubio’s mental health while
incarcerated. Rubio focuses on evidence demonstrating his odd behavior while in state custody.
But Dr. Martinez highlighted that the records likewise revealed “frequent and numerous
documentations of Mr. Rubio self-reporting a myriad of complaints suggestive of (a very atypical)
psychosis”. (Clerk’s Record, Doc. 76–10, 219–20 (emphasis added)) And the documents contain
“remarkably little evidence of staff actually witnessing (or documenting at the very least)
functional behavior indicative of a psychotic condition.” (Id.) At times, prison staff described
Rubio as lucid, goal directed, reality based, and without delusions or hallucinatory behavior. (Id.)
Moreover, Rubio cannot successfully argue that the prison records would have completely
undermined Dr. Welner’s testimony. As an initial matter, Dr. Welner reviewed the “TDCJ Medical
records” as part of his evaluation. (Tr. Trans., Doc. 75–5, 15) In addition to considering these
documents, he “[did] his own research. He [did] his own interviews. He [] conducted his own
analyses and evaluation. . . . And he [] talked to the defendant. He [] interviewed the defendant.”
(Tr. Trans., Doc. 74–18, 216–17) The breadth of information that Dr. Welner considered would
have limited any cross-examination that Rubio’s trial counsel could have attempted with the
prison records. Dr. Welner had considered that information and found it unpersuasive in light of
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the overall set of data that he reviewed before concluding that Rubio did not suffer from a severe
mental disease or defect.
In the end, not only did Rubio’s trial counsel have access to the prison records sufficiently
in advance of the guilt/innocence trial, but their decision to not utilize those documents with the
jury falls within the type of reasonable strategic decisions of trial counsel. Contrary to Rubio’s
contention, the prison records do not represent one-sided evidence in his favor. They provide
some information supporting the argument that Rubio suffered from a severe mental disease or
defect, but also contain information that controverts such an argument. Trial counsel have broad
discretion to make strategic decisions when considering whether to use evidence that presents
strengths and weaknesses. See, e.g., Moore v. Johnson, 194 F.3d 586, 617 (5th Cir. 1999) (noting
that courts consistently reject ineffective assistance claims if “the record established counsel
conducted an adequate investigation, but made an informed trial decision not to use the
potentially mitigating evidence because it could have a prejudicial backlash effect on the
defense”). In the present case, Rubio has failed to demonstrate that his trial counsel’s handling
of the prison records fell below an objective standard of reasonableness.
b. Substantial Claim: Prejudice
Rubio also demonstrates no prejudice from the alleged deficient performance of his trial
counsel in connection with the prison records. Even had his lawyers obtained the prison records
at an earlier point, and had utilized them during the trial, no reasonable probability exists that the
jury would have reached a different decision with respect to his guilt or innocence, or of his
punishment. The contents of the prison records would have supported use by counsel for both
sides. At most, the jury would have heard additional competing evidence regarding Rubio’s
mental health and sanity. Rubio does not demonstrate that the prison records would have
significantly shifted the balance of that evidence in the jury’s mind. See, e.g., Druery v. Thaler,
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647 F.3d 535, 541–42 (5th Cir. 2011) (holding that counsel was not ineffective for failing to
introduce certain mitigating evidence because that same evidence could have also been viewed as
aggravating evidence by the jury). Absent such a showing, Rubio cannot satisfy his burden to
show prejudice.
c. State Habeas Counsel’s Performance
Given the imperfect nature of Claim Seven, it is not surprising that Rubio’s state habeas
counsel chose to not include it within the 2013 Habeas Application. The “performance inquiry
[is] whether counsel’s assistance was reasonable considering all the circumstances.” Segundo v.
Davis, 831 F.3d 345, 350 (5th Cir. 2016). And state habeas counsel possesses the discretion to
focus on a few issues deemed the strongest, while foregoing those issues with a lower chance of
success. See, e.g., Kossie, 423 F. App’x at 437 (explaining that counsel acts reasonably by
“winnow[ing] out weaker arguments” to ensure the greatest chance of success). Rubio fails to
demonstrate that the omission of this issue in the 2013 Habeas Application was anything other
than a strategic decision to not advance a weak argument. As a result, he has not satisfied his
burden to show that his state habeas counsel’s performance fell below an objective standard of
reasonableness.
d. Prejudice in State Habeas Proceedings
Rubio also cannot show actual prejudice from his state habeas counsel’s decision to not
present Claim Seven to the habeas court. No reasonable probability exists that had that court
considered an argument tracking Claim Seven, it would have granted Rubio any relief on this
claim. The reasons that support the Court’s finding that Claim Seven does not represent a
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substantial claim also support the conclusion that the state habeas court would have reached the
same decision.
B. Prosecutorial Corruption
Rubio makes two claims based on alleged prosecutorial corruption: (1) that the State
violated his due process rights by engaging in flagrant misconduct through the actions of the
corrupt Cameron County District Attorney (Claim Four) and (2) that the State violated his equal
protection rights by pursuing the death penalty based on his indigent status and the results of a
public survey (Claim Five).
1.
Claim Four: Due Process Violation
Rubio contends that the State violated his due process rights under the Fourteenth
Amendment when the former Cameron County District Attorney, Armando Villalobos, engaged
in a “flagrant and ongoing” pattern of misconduct that proved prejudicial to Rubio. (Pet., Doc. 61,
118) Rubio describes Villalobos’s conduct in detail, the reprehensibility of which no party
disputes, and which ultimately led to Villalobos’s conviction for extortion, racketeering, and RICO
conspiracy. See United States v. Villalobos, 601 F. App’x 274 (5th Cir. 2015). In particular, Rubio
emphasizes the following seven instances of Villalobos’s misconduct and its alleged relation to the
prosecution against Rubio.
(1)
Villalobos oversaw a kickback scheme in connection with asset forfeiture
funds. In one instance, Villalobos directed the appointment of two friends
to an asset forfeiture proceeding, in return for a kickback. Some of the
seized monies went into the asset-forfeiture fund, which the District
Attorney Office’s used to pay expert witness Dr. Welner in the case against
Rubio.
(2)
One of Rubio’s trial attorneys—Nathaniel Perez—was one of several
attorneys who filed a federal lawsuit for parity between indigent funding
and that for county prosecutors. See Salas, et al. v. Cameron County, 1:10CV-037 (S.D. Tex. Feb. 22, 2010). In response, Villalobos placed Perez on
a “blacklist” that prevented his clients from receiving probation, plea
bargain agreements, or the ability to review discovery.
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(3)
Even though the District Attorney’s Office repeatedly objected to the
allocation of funds in Rubio’s case for purposes such as expert assistance,
Villalobos at the time was personally enriching himself through his corrupt
activities.
(4)
Attorney Alfredo Padilla served as Rubio’s second chair in the original trial.
The District Attorney’s Office then hired Padilla. Rubio moved to disqualify
the District Attorney’s Office from prosecuting his case because of Mr.
Padilla’s employment. The trial court denied the motion.
(5)
The District Attorney’s Office improperly used its subpoena power to seize
information, including legal documents, from Rubio’s cell phone before the
second trial.
(6)
The prosecution ignored a court order preventing press releases and media
interviews about Rubio’s case.
(7)
In 2016, author Laura Tillman published THE LONG SHADOW OF SMALL
GHOSTS: MURDER AND MEMORY IN AN AMERICAN CITY, in which she claimed
that Villalobos conducted polling which led him to believe that residents
wanted the District Attorney’s Office to seek the death penalty against
Rubio.
(Pet., Doc. 61, 119–30) Rubio argues that these examples reveal a comprehensive and flagrant
pattern of misconduct that permeated the prosecution against him.
Rubio concedes that this claim is procedurally defaulted, but argues that he has
established cause and prejudice to overcome the procedural bar. Under that doctrine, “the
existence of cause for a procedural default must ordinarily turn on whether the prisoner can show
that some objective factor external to the defense impeded counsel’s efforts to comply with the
State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Objective external factors
can include “that the factual or legal basis for a claim was not reasonably available to counsel,” or
that “some interference by officials . . . made compliance impracticable”. Id. (cleaned up); see also
Prible v. Lumpkin, 43 F.4th 501, 514 (5th Cir. 2022).
As for prejudice, the “habeas petitioner must show ‘not merely that the errors at . . . trial
created a possibility of prejudice, but that they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.’” Murray, 477 U.S. at 494
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(quoting United States v. Frady, 456 U.S. 152, 170 (1982)). The “showing of pervasive actual
prejudice” is nothing other “than a showing that the prisoner was denied ‘fundamental fairness’
at trial.” Murray, 477 U.S. at 494.
a. Cause
As to Claim Four, Rubio posits that he demonstrates cause through Villalobos’s “failure . .
. to reveal that he conducted a public survey before seeking death against Rubio”, and by “hid[ing]
the fact that he used ill-gotten money from his civil-asset forfeiture scheme to fund Rubio’s
prosecution.” (Pet., Doc. 61, 131) These grounds, however, do not establish cause.
As an initial matter, Rubio knew about most of the allegations of misconduct at the time
of trial. His defense team filed motions alleging government misconduct, including regarding the
State’s use of its subpoena power, its interaction with the press despite a gag order, its objection
to the allocation of funds, the placement of Perez on a “blacklist”, and the State’s employment of
Padilla. The trial court fully explored those issues in a pre-trial hearing. (Tr. Trans., Doc. 73–15)
Given the presentation of these issues to the trial court, Rubio cannot contend that the
information regarding these claims was not reasonably available to him in 2013 when he filed his
original habeas application.
It is true that Rubio, in 2013, had no knowledge of Tillman’s book, which she published
three years later. In that book, Tillman reports that Villalobos wrote her a letter revealing that he
relied on community polling when deciding to prosecute Rubio as a capital case. This source,
however, does not help Rubio. As an initial matter, Section 2254(e)(2) precludes the Court’s
consideration of the information. In addition, Villalobos acknowledged his consideration of
community opinion in a hearing before Rubio’s second trial, explaining that he “believe[d] that
the majority of the citizens of Cameron County want me to proceed on the death penalty for John
Allen Rubio”. (Tr. Trans., Doc. 73–15, 90–91). To the extent that Villalobos’s consideration of
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public opinion provided Rubio with an argument of selective prosecution or other misconduct, he
possessed the information necessary to develop the claim even before the 2010 trial.
b. Prejudice
Even if Rubio could demonstrate cause for not presenting Claim Four in his 2013 Habeas
Application, he nevertheless fails to show any prejudice. For him to meet this burden, the record
must reveal errors at trial that “worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.” Smith v. Quarterman, 515 F.3d 392, 403 (5th
Cir. 2008) (quoting Murray, 477 U.S. at 488). He falls far short of this high standard. Most
notably, he establishes no connection between Villalobos’s misconduct and Rubio’s own case. For
example, the record contains no evidence that Villalobos requested, or would have accepted,
money for leniency on Rubio. The record is devoid of any evidence regarding an alleged “blacklist”
that included Rubio’s counsel, Perez, or any manner in which such a list led to specific decisions
by the State against Rubio. In addition, while Rubio complains of the State’s objection to his
funding requests, he cannot deny that his defense team retained no less than nine medical and
mental health experts. Ultimately, while no party disputes that Villalobos engaged in gross
misconduct as District Attorney, the record contains no evidence indicating that the misconduct
affected the prosecution against Rubio.
The alleged revelations in Tillman’s book also would not demonstrate prejudice, even if
the Court considered that evidence. In the alleged letter on which Tillman relies, Villalobos
includes polling as only one factor in the decision to seek the death penalty. He also based the
decision on “the unsettling, shocking, and unescapable images of the babies that were murdered”.
Laura Tillman, THE LONG SHADOW OF SMALL GHOSTS: MURDER AND MEMORY IN AN AMERICAN CITY
153 (2016). He had made similar comments before, including at a pre-trial hearing when he
explained why the State sought the death penalty: “And the very nature of the offense, he held
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down and strangled his babies. Held them down, stabbed them, cut their heads off. The last one,
he couldn’t even cut the head off completely. He had to yank the head off. Because of that and
that alone, we are seeking the death penalty.” (Tr. Trans., Doc. 73–15, 90–91 (emphasis added))
The prosecution does not commit misconduct when it weighs the heinousness of a crime to decide
whether to seek the death penalty. And assuming that Villalobos considered community opinion
as a factor, his doing so would not demonstrate that Rubio was denied fundamental unfairness at
trial.
c. Merits Review (in the alternative)
Given that Rubio has not satisfied his burden to show cause and prejudice, the Court does
not reach the merits of Claim Four. But even if the Court applied a merits review, the same
analysis that leads the Court to conclude that Rubio has not established prejudice would also
undermine his ability to prove a violation of his due process rights. He would have to show that
the alleged misconduct “so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Gutierrez v. Quarterman, 201 F. App’x 196, 202 (5th Cir. 2006) (citing
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). But the disconnect between Villalobos’s
misconduct and the prosecution of Rubio undermines any claim by him to show fundamental
unfairness.
2. Claim Five: Equal Protection Violation
Rubio alleges that the State violated his equal protection rights “when it pursued the death
penalty against him because of his indigent status and based on a public survey.” (Pet., Doc. 61,
132) He rests this claim on the same factual allegations as those he presents as to Claim Four. In
short, he contends that Villalobos dispensed leniency to those who bribed him, “and to preempt
any criticism for granting leniency to those capable of paying, he prosecuted indigent defendants”,
such as Rubio, “with maximum conceivable force.” (Id.) According to Rubio, Villalobos detracted
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from his own criminal activity by directing an aggressive prosecution against Rubio in “bad faith”.
In addition, Rubio alleges that Villalobos relied on a community poll to decide to seek the death
penalty. He did not use such sources with wealthy defendants, rendering the prosecution of Rubio
as a capital case “an arbitrary, unjustifiable decision.” (Id. at 132 and 138)
Rubio did not present this claim in his 2013 Habeas Application. Three years later, he
submitted his 2016 Supplemental Habeas Application, which included an equal protection
challenge. Specifically, he argued that he “was denied equal protection by the State’s refusal to
discuss the possibility of a plea bargain, because the state’s refusal was part of an illegal and ongoing bribery scheme.” (Habeas Record, Doc. 83–6, 86) The trial habeas court forwarded Rubio’s
successive habeas application to the TCCA, which concluded that “the information forming the
basis for this argument was known to [Rubio’s] trial attorney since the time of [his] trial” and that
the “theories about the impact of the bribery scheme were speculative”. Ex parte Rubio, 2018 WL
2329302, at *4.
Then, when Rubio filed the instant matter, this Court stayed the case for Rubio to return
to Texas courts, where he presented Claim Five, relying on the statements about the community
poll within Tillman’s book. Rubio now argues that the “new evidence of the survey fundamentally
alters the claim because it goes directly to Villalobos’s bad-faith intent in seeking death against
Rubio.” (Pet., Doc. 61, 126) This argument, however, proves unpersuasive. The Court need not
determine whether Claim Five is fundamentally different from the equal protection claim that
Rubio included in his 2016 Supplemental Habeas Application, as the TCCA considered Claim Five
in 2022 and concluded that it represented an abuse of the writ. See Ex parte Rubio, 2022 WL
221485, at *3. This ruling definitively established that Claim Five is exhausted and procedurally
defaulted.
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As a result, to overcome the procedural bar, Rubio must demonstrate cause and prejudice.
He fails on both prongs.
a. Cause
Rubio argues that the State’s misconduct establishes cause, (Pet., Doc. 61, 141; Reply, Doc.
87, 96–97), but he fails to explain how the factual or legal basis for his equal protection claim was
not reasonably available to his state habeas counsel, or how any interference by officials prevented
him from investigation or presenting the claim. On the contrary, the TCCA in 2018 concluded
that Rubio, in 2013, possessed the information necessary to present Claim Five. Ex parte Rubio,
2018 WL 2329302, at *4. The same court reached the same conclusion in connection with the
2021 Habeas Application.
These decisions reinforce that no impediment existed to Rubio
presenting Claim Five from the outset, in 2013. See Ford v. Davis, 910 F.3d 232, 235 (5th Cir.
2018) (finding that the Court of Criminal Appeals’ decision not to allow a successive habeas
application means it “necessarily found that [the petitioner] knew or reasonably could have
known about the factual basis”). As a result, he cannot establish cause to excuse his procedural
default.
b. Prejudice
In addition, Rubio cannot establish the prejudice required to overcome the procedural bar.
As with Claim Four, Rubio establishes no connection between the State’s efforts against him and
Villalobos’s misconduct. In particular, the record contains no indication that the District Attorney
based its prosecution of Rubio on his indigency status. Rubio highlights Villalobos’s well-known
misdeeds in particular cases and weaves a tale of comprehensive corruption across all cases that
the District Attorney prosecuted during Villalobos’s tenure. But Rubio cannot demonstrate
prejudice through speculative theories that stack inference upon inference. In the end, he fails to
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identify errors at trial that “worked to his actual and substantial disadvantage, infecting his entire
trial with error of constitutional dimensions”.
With respect to the information in Tillman’s book from 2016, Rubio’s reliance on that
source also proves speculative. The record contains no credible information that Villalobos relied
on polling when exercising prosecutorial discretion. Not only can the Court not consider Tillman’s
book under Section 2254(e)(2), but even if it did, the book presents only hearsay statements from
a single alleged letter. Moreover, even in that letter, Villalobos acknowledges that the decision to
seek the death penalty against Rubio stemmed from multiple grounds, including the nature of the
crime, which weighed heavily in the prosecutor’s decision. Not only does the book reveal no trial
error, it falls far short of establishing an error of constitutional dimensions.
c. Merits Review (in the alternative)
Even if the Court conducted a merits review of Claim Five, the Court would dismiss it. The
Fourteenth Amendment prevents a prosecution based on “a discriminatory effect” and “motivated
by a discriminatory purpose.” United States v. Armstrong, 517 U.S. 456, 465 (1996) (quoting
Wayte v. United States, 470 U.S. 598, 608 (1985)). Rubio must “prove that he received treatment
different from that received by similarly situated individuals and that the unequal treatment
stemmed from a discriminatory intent.” Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001). He
fails to do so. He alleges that Villalobos discriminated against indigent defendants, but such
individuals generally do not constitute a constitutionally suspect class. See Carson v. Johnson,
112 F.3d 818, 821–22 (5th Cir. 1997) (“Neither prisoners nor indigents constitute a suspect
class.”). Only two distinguishing characteristics trigger heightened scrutiny under the equalprotection clause for indigent individuals: (1) “because of their impecunity they [are] completely
unable to pay for some desired benefit”; and (2) “as a consequence, they sustain[] an absolute
deprivation of a meaningful opportunity to enjoy that benefit.” San Antonio Indep. Sch. Dist. v.
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Rodriguez, 411 U.S. 1, 20 (1973). The record does not satisfy this standard as to Rubio. He does
not even allege that Cameron County had an official bribery policy that led to discrimination. And
he has not shown that “the decisionmakers in his case acted with discriminatory purpose.”
McCleskey v. Kemp, 481 U.S. 279, 292 (1987); see also Hughes v. Dretke, 160 F. App’x 431, 436
(5th Cir. 2006) (finding that the petitioner presented no direct evidence that his conviction
resulted from a racially discriminatory practice).
As a result, he presents no viable equal
protection claim.
C. Expert Testimony
In his third group of procedurally-defaulted claims, Rubio advances the following four
theories related to the State’s experts:
Claim Six:
The State knew or should have known that it elicited false testimony from
Dr. Michael Welner.
Claim Eight:
The State knew or should have known that it elicited false testimony from
A.P. Merillat.
Claim Nine:
The State violated Brady v. Maryland by not disclosing Merillat’s false
testimony from a prior case.
Claim Ten:
Trial counsel was ineffective by not preparing for Merillat’s false testimony
during the punishment phase.
Rubio did not raise these claims in his 2013 Habeas Application, but included them in his 2021
Habeas Application. The TCCA found the claims an abuse of the writ, which rendered them
procedurally defaulted in this Court. As to each claim, Rubio argues that he can overcome the
procedural bar, and that his claims have merit. The Court disagrees as to the first point,
precluding a merits review. But even if the Court could consider these claims, the Court would
nevertheless find them lacking merit.
1. Claim Six: Dr. Welner’s Alleged False Testimony
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Rubio contends that the State violated his due process rights under the Fourteenth
Amendment by eliciting “false testimony from Dr. Michael Welner when it asked him to testify
that, because Rubio was not taking anti-psychotic medication, the absence of psychotic symptoms
meant that Rubio did not have an authentic mental health disorder.” (Pet., Doc. 61, 145)
To overcome the procedural bar as to this claim, Rubio relies on the doctrine of a
fundamental miscarriage of justice, which requires that he show that he is actually innocent of the
crime. Dretke v. Haley, 541 U.S. 386, 393 (2004). He faces a high hurdle to meet this standard.
A convicted defendant “comes before the habeas court with a strong—and in the vast majority of
the cases conclusive—presumption of guilt.” Schlup v. Delo, 513 U.S. 298, 326 (1995). As a result,
“tenable actual-innocence gateway pleas are rare.” McQuiggin v. Perkins, 569 U.S. 383, 386
(2013); see also Wilkerson v. Cain, 233 F.3d 886, 889 (5th Cir. 2000) (“[A] substantial showing
of actual innocence is extremely rare”.). Importantly, “the actual innocence excuse for procedural
default requires factual innocence, not mere legal insufficiency.” McGee v. Lumpkin, No. 2210188, 2022 WL 18935854, at *1 (5th Cir. Sept. 8, 2022) (cleaned up) (quoting Bousley v. U.S.,
523 U.S. 614, 623 (1998)).
This doctrine also allows an individual who receives the death penalty to acknowledge
having committed the criminal act, but still challenge the sentence, by demonstrating that the
record contains “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 (quoting Whitley, 505 U.S. at 336). “[T]he habeas petitioner’s claim
must tend to negate not just the jury’s discretion to impose a death sentence but the petitioner’s
very eligibility for that punishment”. Rocha v. Thaler, 619 F.3d 387, 405 (5th Cir.), clarified on
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denial of reconsideration, 626 F.3d 815 (5th Cir. 2010) (emphasis in original); see also Gutierrez
v. Saenz, 93 F.4th 267, 293 (5th Cir. 2024) (adopting the phrase “not death eligible”).
In the present case, Rubio relies on both avenues, asking the Court to excuse the
procedural default “because, absent Dr. Welner’s crucial misrepresentations, no reasonable juror
would find that Rubio was sane at the time of the offense and therefore guilty, and because no
reasonable juror would find that Rubio deserved the death penalty if he were found guilty of
capital murder.” (Pet., Doc. 61, 155)
a. Dr. Welner’s Testimony and Rubio’s Challenge
As its final rebuttal witness, the State called Dr. Michael Welner, a forensic psychiatrist
who interviewed Rubio and others who knew him. (Tr. Trans., Doc. 74–19, 6–174) “Additionally,
he reviewed witness statements, transcripts of testimony, [Rubio’s] statements, mental health
evaluations, and institutional records.” Rubio, 2012 WL 4833809, at *11. Based on that review,
he identified “several instances in which [Rubio’s] professed delusions were contradicted by other
things that [he] had said or done,” “opined that [Rubio] did not suffer from a severe mental
disease at the time he committed the offense,” and told the jury that Rubio “took anti-psychotic
medications for only a brief part of the time that he was in custody, but he did not generally exhibit
psychotic symptoms.” Id. at *13.
Rubio argues that the State violated his right to due process under Napue v. Illinois when
it elicited testimony that it knew, or should have known, was false and misleading from Dr.
Welner. (Pet., Doc. 61, 145) In particular, Rubio alleges that Dr. Welner gave false testimony by
saying that Rubio “was not taking anti-psychotic medication” and that “the absence of psychotic
symptoms meant that Rubio did not have an authentic mental health disorder.” (Id. at 145)
Relying on his medical records from TDCJ and the Hidalgo County jail, a portion of which he
presents on federal habeas review, Rubio identifies several drugs which doctors prescribed him
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during his incarceration. He also emphasizes that the TDCJ records reflect that he reported
experiencing visual and auditory hallucinations and delusions when incarcerated awaiting the
second trial. (Id. at 149–51) This evidence, Rubio argues, exposes Dr. Welner’s testimony as
untruthful. And according to Rubio, “the impact of Dr. Welner’s false testimony corrupted all
fact-finding pertaining to mental health . . . at both the guilt and punishment phases of the case.”
(Reply, Doc. 87, 107)
b. “Actual Innocence” within Guilt/Innocence Phase
Rubio first claims that absent Dr. Welner’s allegedly false testimony, no reasonable juror
would have found him sane at the time that he killed the children.
As a threshold matter, the law does not clearly enable a Section 2254 petitioner to
overcome procedural default by arguing that absent a constitutional error, the jury would have
found the petitioner not guilty by reason of insanity (“NGBRI”). A petitioner demonstrates a
fundamental miscarriage of justice by showing “factual innocence, not mere legal insufficiency.”
Bousley, 523 U.S. at 623. In contrast, an individual who presents a NGBRI defense is not arguing
that he is factually innocent. Rather, the NGBRI defense represents an affirmative defense, which
concerns legal, rather than factual innocence. The Fifth Circuit recently considered this issue in
a now-vacated decision. See Crawford v. Cain, 68 F.4th 273, 289 (5th Cir.), reh’g en banc
granted, opinion vacated, 72 F.4th 109 (5th Cir. 2023). The panel concluded that a prisoner could
not show actual innocence by alleging that the jury should have found him not guilty by reason of
insanity. Although the decision has no authoritative weight due to its vacated status, the
reasoning within it has some force. And if the en banc court ultimately adopts the same reasoning,
the decision would automatically preclude Rubio’s Claim Six.
In any event, irrespective of the ultimate disposition of Crawford, and assuming that
Rubio can claim actual innocence based on his NGBRI defense, the argument would not prevail.
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Rubio presents a false-evidence claim, which requires him to prove that: (1) a witness gave false
testimony; (2) the falsity was material; and (3) the prosecution used the testimony knowing it was
false. Reed v. Quarterman, 504 F.3d 465, 473 (5th Cir. 2007). And in the context of a Section
2254 decision, he must show that there is a “reasonable probability” that the jury would have
found him not guilty had the false testimony been omitted. Dickson v. Quarterman, 462 F.3d 470,
477 (5th Cir. 2006).
Rubio’s argument fails at several levels. Foremost, the record does not support the
conclusion that Dr. Welner provided any false testimony. Rubio focuses on the fact that doctors
prescribed Rubio medications when he was incarcerated, and that he exhibited some symptoms
of mental illness. While true, the record also contains controverting evidence, including that
Rubio refused to take the medications, and that Rubio feigned symptoms of mental illness. 16 (See
Answer, Doc. 84, 173–76 (citing various statements in the record)) For example, Dr. Martinez
observed in 2008 that Rubio reported refusing to take prescribed medication. (Report, Doc. 76–
10, 218) Two years later, Dr. Martinez observed that Rubio was taking only an anti-depressant,
and not psychotropic medication. One of Rubio’s own experts, Dr. Morris, testified that Rubio
“has not been on anti-psychotic medications for years, several years now.” (Tr. Trans., Doc. 74–
16, 130) In the end, Dr. Welner had an ample foundation to testify that Rubio was not taking
psychotropic medications while incarcerated and had shown no symptoms of insanity. Rubio’s
counsel possessed some evidence to challenge Dr. Welner’s testimony, but that evidence
16 Not only does Rubio ignore the controverting evidence, he also displays a lack of precision when referring to evidence
that allegedly supports his position. For example, he alleges that in 2007, “he continued to take medication for his
psychosis”, as shown by “jail records indicat[ing] that, leading up to trial, Rubio was again taking Wellbutrin and
Vistaril.” (Pet., Doc. 61, 148–49) But Wellbutrin is typically characterized as an anti-depressant and Vistaril as an
antihistamine; the record establishes neither as a psychotropic medication. See GlaxoSmithKline LLC v. Teva Pharms.
USA, Inc., No. CV 13-726, 2014 WL 12603224, at *1 n. 2 (E.D. Pa. Mar. 10, 2014) (describing Wellbutrin as a
“prescription anti-depressant drug”); Nastase v. Sanders, No. C09-1138-RAJ-BAT, 2010 WL 1536720, at *3 (W.D.
Wash. Feb. 3, 2010), report and recommendation adopted, 2010 WL 1536721 (W.D. Wash. Apr. 15, 2010) (“Vistaril is
an anti-histamine that is commonly prescribed for itching and rashes, and sometimes is used as a short-term treatment
for anxiety and sleep disorders.”).
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represented common impeachment evidence, with the jury left to determine what weight to
ascribe to Dr. Welner’s statements.
In addition, Rubio fails to show that Dr. Welner’s allegedly false statements were material.
Many witnesses provided testimony regarding Rubio’s mental health; the issue proved a central
focus of each stage of the proceedings. Rubio falls far short of showing that absent any error, the
statements by Dr. Welner, within a trial replete with evidence concerning Rubio’s mental health,
would have been material, much less that it would have led every reasonable juror to conclude
that Rubio was insane. 17
c. “Actual Innocence” within Sentencing Phase
Based on the same analysis regarding Dr. Welner’s testimony in the preceding section,
Rubio cannot show “actual innocence” in connection with the sentencing proceedings. In no
manner has he presented “clear and convincing evidence that, but for a constitutional error, no
reasonable juror would have found [him] eligible for the death penalty”. Busby, 925 F.3d at 710.
In no manner does he “negate” his “very eligibility for that punishment”. Rocha, 619 F.3d at 405
(emphasis in original). In fact, he shows no error of any kind concerning the challenged
statements by Dr. Welner. At most, he presents examples of impeachment evidence that his
counsel could have used to challenge Dr. Welner’s testimony, with the witness having abundant
evidence to support his position. This showing does not demonstrate actual innocence, proving
fatal to the application of the fundamental-miscarriage-of-justice exception to the procedural bar.
2. Claim Eight: Alleged False Testimony from A. P. Merillat
Rubio presents three claims regarding the testimony of A.P. Merillat, a criminal
investigator for the Huntsville Special Prosecution Unit. The State called Merillat during the
17 As a final deficiency, Rubio does not demonstrate that the State knowingly elicited any false testimony from Dr.
Welner.
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punishment phase to testify regarding prison violence and the prison classification system. In
Claim Eight, Rubio alleges that the State elicited testimony from Merillat that it knew, or should
have known, was false. (Pet., Doc. 61, 161) In particular, Rubio contends that Merillat “misled
Rubio’s jury regarding significant components of TDCJ’s classifications system, and also the
extent to which he testified falsely in other cases.” (Id. at 162)
To advance Claim Eight, Rubio must overcome the procedural bar. On this front, and as
with Claim Six, Rubio relies on the fundamental-miscarriage-of-justice exception. In addition, he
also argues that he can establish cause and prejudice under Carrier, and that the State’s
misconduct was an external factor that prevented him from raising the claims in the 2013 Habeas
Application. However, based on a review of the record and the applicable law, the Court concludes
that Rubio has established neither exception. Moreover, even if the merits of Claim Eight could
be reached, the Court would find it deficient.
To consider Claim Eight, as well as the other two claims that concern Merillat’s testimony,
the Court first summarizes the record concerning the witness and his testimony.
a. Merillat’s Testimony
In the years before Rubio’s second trial, the State frequently called Merillat as a witness to
testify regarding the prison classification system. (Tr. Trans., Doc. 51–36, 191, 197) In general,
Merillat testified about the Texas Department of Criminal Justice and its regulations for
individuals sentenced to death or to life without parole. For example, and of particular relevance
to Claim Eight, in 2007, the State and a capital-murder defendant each presented evidence during
the punishment phase of Adrian Estrada about the TDCJ system’s treatment of individuals
sentenced to life without parole. See Estrada v. State, 313 S.W.3d 274, 287 n. 12 (Tex. Crim. App.
2010). When the State called Merillat as a rebuttal witness, he testified that, “after 10 years of
[restrictive] status, a sentenced-to-life-without-parole capital murderer could achieve a lower
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(and less restrictive) . . . classification status”. Id. at 286. Based on notes that the jury sent to the
court when deliberating, the issue appeared to be of importance to the jury, which ultimately
answered the special interrogatories in a way that required the court to impose the death penalty
against Estrada. In the ensuing appeal, the State acknowledged that Merillat had provided
incorrect testimony, but both the State and Estrada agreed that the error had been unintentional
and stemmed from a change in TDCJ regulations that took effect about three months before
Merillat testified. Id. at 287; see also Gobert v. State, No. AP-76,345, 2011 WL 5881601, at *6
(Tex. Crim. App. Nov. 23, 2011) (not designated for publication) (referring to Merillat’s testimony
in Estrada as “unintentionally inaccurate”). But based on the incorrect testimony given in 2007,
the TCCA ordered a new punishment hearing, finding that a “fair probability” existed “that [the
defendant’s] death sentence was based upon Merillat’s incorrect testimony as evidenced by the
jury’s notes.” Id.
In 2008, while the Estrada appeal was pending, Merillat testified in a capital case against
Manuel Velez, and provided the same testimony as in Estrada. After the court imposed the death
penalty on Velez based on the jury’s answers to the special interrogatories, Velez appealed. And
in June 2012, the TCCA again found that Merillat had provided incorrect testimony based on the
outdated TDCJ regulation. See Velez v. State, 2012 WL 2130890, at *31–33 (Tex. Crim. App.
2012). The court reversed Velez’s sentence because it could “not find beyond a reasonable doubt
that Merillat’s false testimony did not contribute to the conviction or punishment”. Id. at *33.
In the prosecution of Rubio, before his second trial, the State disclosed the Estrada matter
to defense counsel, recognizing that a Texas court “overturned a punishment sentence in a capital
murder case based on [Merrilat’s] testimony”. (Tr. Trans., Doc. 74–22, 183)
During the punishment phase against Rubio, the State called Merillat to testify about
TDCJ’s classification system for inmates, contrasting the security for individuals on death row
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with the security for the prison system’s general population. He testified that TDCJ classified
prisoners on a scale of G-1 through G-5, from least to most restrictive. (Tr. Trans., Doc. 74–22,
206)
He represented that TDCJ applied G-3, the midpoint security status, to individuals
convicted of capital murder, but not sentenced to death. (Id. at 206 and 214) And he discussed
the availability of weapons, drugs, and alcohol within TDCJ, and commented that prisoners had
“abundant opportunities to commit crimes of violence”. (Id. at 220–232) This testimony bore
relevance to the jury’s need to answer the special interrogatories, including whether “there is a
probability that the defendant would commit criminal acts of violence that would constitute a
continuing threat to society”. TEX. CODE CRIM. PROC. § 37.071(b)(1). The trial court could not
impose the death penalty unless the jury unanimously answered the special interrogatories in a
certain manner, which it did.
In addition, the State questioned Merillat during direct examination about his “mistake”
in the Estrada case. (Tr. Trans., 74–22, 185–86) Merillat described how “[t]he prison system had
changed their classification system just prior to [his] testimony [in Estrada] and didn’t give [him]
the information.” (Id. at 203) He explained that in Estrada, he had given “information that [he]
had believed to be correct,” but “what amounted to bad information” because he did not have “the
most current documents.” (Id. at 203)
On cross examination, Rubio’s defense counsel confronted Merrilat with his testimony
from Estrada, attempting to have Merrilat confirm that he had made TDCJ procedures look
“more lenient” toward convicted murderers than they actually were, and that TDCJ possessed
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resources and procedures “to protect the inmates and to protect the people that have access to
them.” (Id. at 240–241)
Neither the State nor Rubio’s defense team questioned Merillat about Velez, which at the
time remained on appeal.
Rubio now alleges that Merillat “overstated the privileges an inmate like Rubio would have
if he were sentenced to life, and [ ] understated the restrictions placed on those same inmates.”
(Pet., Doc. 61, 166) According to Rubio, Merillat’s testimony “falsely inflated the jury’s impression
that Rubio would be more able, or more likely, to commit acts of violence in TDCJ.” (Id.) In
addition, Rubio argues that Merillat “misled the jury to believe that the false testimony . . . had
been limited to Estrada”, and by minimizing his responsibility for that incorrect testimony. (Id.
at 167)
b. Fundamental Miscarriage of Justice
Rubio first presented Claim Eight in his 2021 Habeas Application, and the TCCA found it
to be an abuse of the writ. To overcome the procedural bar that now applies, Rubio argues that
he has demonstrated a fundamental miscarriage of justice because “absent these crucial
representations [by Merillat], no reasonable juror would find that Rubio deserved the death
penalty.” (Pet., Doc. 61, 170)
Rubio fails to persuade. As explained in connection with the challenge based on Dr.
Welner’s testimony, Rubio must show “actual innocence” by demonstrating that the record
contains “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. “[T]he habeas petitioner’s claim must tend to negate not just the jury’s
discretion to impose a death sentence but the petitioner’s very eligibility for that punishment”.
Rocha, 619 F.3d at 405 (emphasis in original).
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In Claim Eight, Rubio does not challenge his eligibility to receive a death sentence.
Instead, he argues that Merillat’s testimony unduly swayed the jury into exercising its discretion
by answering the special interrogatories in a manner that resulted in the death sentence. Such a
claim does not permit the application of the fundamental-miscarriage-of-justice exception.
In any event, Rubio also fails to establish the merits of Claim Eight. In order to support
his false-evidence claim, Rubio would have to prove that: (1) a witness gave false testimony;
(2) the falsity was material; and (3) the prosecution used the testimony knowing it was false. Reed
v. Quarterman, 504 F.3d 465, 473 (5th Cir. 2007). “The testimony is material if there is any
reasonable likelihood that the false testimony could have affected the judgment of the jury.”
Canales, 765 F.3d at 573 (internal quotation marks omitted). “A reasonable probability means a
substantial, not just conceivable, likelihood of a different result.” Canfield v. Lumpkin, 998 F.3d
242, 248 (5th Cir. 2021) (cleaned up).
As a starting point, Rubio does not identify any false testimony. He highlights the false
testimony that Merillat provided in Estrada and Velez, but Merillat did not repeat that testimony
to the jury that considered Rubio’s sentence. In addition, Rubio argues that Merillat understated
the restrictions that TDCJ would impose on an inmate sentenced to life without parole, and
overstated the opportunity that Rubio would have to behave violently. But within this argument,
Rubio does not identify any factually incorrect statements by Merillat.
Instead, Rubio submits the affidavit of Frank AuBuchon, a former corrections officer and
Administrator for Classifications Operations in TDCJ. (AuBuchon Aff., Doc. 81–3, 264–66)
AuBuchon characterizes Merillat’s testimony as “false and misleading”, in particular with respect
to “how an offender convicted of capital murder and sentenced to life would be classified and
managed while incarcerated in a TDCJ facility.” (Id.) He identifies various alleged errors in
Merillat’s testimony.
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Not only can the Court not consider such evidence under § 2254(e)(2), even if it could, the
affidavit would at best create a battle of the experts, which cannot establish a fundamental
miscarriage of justice. See, e.g., Boyle v. Johnson, 93 F.3d 180, 186 (5th Cir. 1996) (“The fact that
other experts disagreed with Dr. Erdmann is insufficient, by itself, to call Dr. Erdmann’s
testimony into question.”).
Finally, even assuming that Merillat’s testimony to the Rubio jury could be considered
false, Rubio does not establish its materiality. Merrilat’s testimony concerned whether Rubio
represented a continuing danger to society, if he was given a sentence of life imprisonment
without the possibility of parole. Even had Rubio’s defense team completely discredited Merrilat,
a reasonable jury had ample evidence to still conclude that Rubio represented a continuing
danger, based on his behavior in prison and the horrific nature of his crime. See, e.g., United
States v. O’Keefe, 128 F.3d 885, 898 (5th Cir. 1997) (rejecting Napue claim on the grounds that
there was no “reasonable probability that the jury would have reached a different outcome even
had it been fully aware of all of the alleged inconsistencies and falsehoods” in the witness
testimony). For example, the jury heard that Rubio started a fire while incarcerated, placing other
inmates and prison employees in danger. (Tr. Trans., Doc. 74–21, 68) Jurors heard evidence
concerning Rubio’s history of drug use and his previous crimes. (Tr. Trans., Doc. 74–22, 152–54)
And the State reminded the jury of the horrific nature of the crime, which “alone may be sufficient
to sustain the jury’s finding of future dangerousness.” Buntion v. State, 482 S.W.3d 58, 66 (Tex.
Crim. App. 2016). Amidst the significant evidence that supported the jury’s responses to the
special interrogatories, Rubio cannot establish that any inaccurate statements by Merillat proved
the linchpin that led the jury to its conclusions.
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c. Cause and Prejudice
Rubio also argues, albeit summarily, that he can demonstrate cause and prejudice to
permit the Court to disregard the procedural bar, by demonstrating that “the State’s knowing
reliance on this false testimony [represented] an external impediment to raising this claim
previously.” (Pet., Doc. 61, 169) Rubio’s brief argument on this point proves insufficient.
Under the cause-and-prejudice doctrine, “the existence of cause for a procedural default
must ordinarily turn on whether the prisoner can show that some objective factor external to the
defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier,
477 U.S. 478, 488 (1986). Objective external factors can include “that the factual or legal basis
for a claim was not reasonably available to counsel,” or that “some interference by officials . . .
made compliance impracticable”. Murray, 477 U.S. at 488 (cleaned up); see also Prible, 43 F.4th
at 514. As for prejudice, the “habeas petitioner must show ‘not merely that the errors at . . . trial
created a possibility of prejudice, but that they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.’” Murray, 477 U.S. at 494
(quoting Frady, 456 U.S. at 170). The “showing of pervasive actual prejudice” is nothing other
“than a showing that the prisoner was denied ‘fundamental fairness’ at trial.” Murray, 477 U.S. at
494.
As to cause, Rubio cannot show that his defense counsel lacked the factual or legal basis
to present Claim Eight within his 2013 Habeas Application. He argues that the State’s “knowing
reliance on [Merillat’s] testimony” represents “an external impediment to raising this claim
previously.” (Pet., Doc. 61, 170) While he accurately depicts the State as relying on Merillat’s
testimony, he does not explain how the fact that the State called Merillat as a witness and elicited
testimony from him presented any impediment to Rubio presenting a claim regarding Merillat a
few years later. By 2013, Rubio knew of both the Estrada and the Velez decisions. He still did not
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present Claim Eight within the 2013 Habeas Application, proving fatal to his attempt to establish
cause so as to overcome the procedural bar. In addition, even if he could show cause, his position
would still falter at the prejudice prong, as the record in no manner supports the conclusion that
any constitutional error occurred, much less one that denied Rubio of fundamental fairness at
trial. The jury heard abundant evidence concerning Rubio’s dangerousness and the nature of the
crime. Rubio cannot show that any remarks from Merillat represented the key evidence that led
the jury to answer the special interrogatories so as to require the death sentence.
d. Merits Review (in the alternative)
As explained, Rubio’s Claim Eight fails because it is procedurally defaulted and he has not
demonstrated that any exception applies that would enable the Court to disregard the default.
The same analysis would also lead the Court to deny the claim on the merits, as Rubio has not
satisfied the elements for a false-evidence claim.
3. Claim Nine: Brady Violation in Connection with Merillat’s Testimony
In a position overlapping with Claim Eight, Rubio alleges that the State violated Brady by
not disclosing prior to trial that Merillat had provided false testimony in Velez. (Pet., Doc. 61, 170)
According to Rubio, his defense team could have used the information “to significantly damage
Merillat’s credibility.” (Id.)
Rubio acknowledges that Claim Nine is procedurally defaulted. He argues, however, that
the Court should disregard the procedural bar under the cause-and-prejudice doctrine based on
“the State’s failure to disclose this impeachment evidence, an external impediment to raising this
claim previously.” (Id. at 173) In addition, he contends that the fundamental-miscarriage-ofjustice exception also applies, as absent the “crucial misrepresentations” stemming from the
State’s failure to disclose Merillat’s false testimony in Velez, “no reasonable juror would find that
Rubio deserved the death penalty.” (Id. at 174)
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Based on the record and the applicable law, the Court concludes that neither exception
applies.
a. Fundamental Miscarriage of Justice
As with Claim Eight, Rubio does not meet the threshold requirements of this exception.
First, he does not negate his eligibility for a death sentence, rendering the exception inapplicable.
See Rocha, 619 F.3d at 405 (“[T]he habeas petitioner’s claim must tend to negate not just the
jury’s discretion to impose a death sentence but the petitioner’s very eligibility for that
punishment.” (emphasis in original)).
Second, Rubio does not demonstrate that any Brady violation occurred. Under Brady,
the State “has a duty to disclose exculpatory evidence that is material to either guilt or
punishment.” Bower v. Quarterman, 497 F.3d 459, 476 (5th Cir. 2007). “To establish a Brady
violation, a defendant must show: (1) the evidence at issue was favorable to the accused, either
because it was exculpatory or impeaching; (2) the evidence was suppressed by the prosecution;
and (3) the evidence was material.” Reeder v. Vannoy, 978 F.3d 272, 277 (5th Cir. 2020).
“Suppressed evidence is material if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” Murphy v.
Davis, 901 F.3d 578, 597 (5th Cir. 2018) (internal quotation marks omitted). A “reasonable
probability” is one sufficient to undermine confidence in the outcome of the trial. United States
v. Bagley, 473 U.S. 667, 682 (1985). “The materiality of Brady material depends almost entirely
on the value of the evidence relative to the other evidence mustered by the state.” Rocha, 619 F.3d
at 396–97 (adding that “the impeached testimony of a witness whose account is strongly
corroborated by additional evidence supporting a guilty verdict . . . generally is not found to be
material”).
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Rubio’s argument fails because the record demonstrates that no suppression occurred,
and that the information concerning Merillat’s testimony in Velez was not material. On the first
point, the undisputed chronology proves fatal to Rubio’s position. At the time of Rubio’s second
trial, the Velez decision remained on appeal. No Texas court had determined that Merillat had
provided inaccurate testimony in that case. Rubio appears to argue that the State, aware of the
finding by a Texas court that Merillat had provided inaccurate testimony in Estrada, should have
disclosed that Merillat had provided similar testimony in Velez, even though that case remained
on appeal. No authority supports such a position.
And third, even if the State bore a duty under Brady to disclose Merillat’s testimony in
Velez, such information would have done nothing more than provide cumulative impeachment
evidence to defense counsel. It is undisputed that Rubio’s counsel knew of Merillat’s erroneous
testimony in Estrada, and both the State and Rubio questioned Merillat about that testimony in
the punishment phase. The suppression of cumulative impeachment evidence typically cannot
support a Brady violation. See United States v. Sipe, 388 F.3d 471, 489 (5th Cir. 2004)
(“[E]vidence which impeaches an already impeached witness is by definition cumulative; its
suppression does not give rise to a Brady violation.”). And in the present case, this conclusion
rings true.
The jury heard abundant evidence that supported its answers to the special
interrogatories. In light of the State’s strong case for a death sentence, such as the testimony that
Rubio acted violently even when held under strict prison security, Rubio has not shown a
reasonable probability that the jury would have answered the special issues differently had it
known that Merillat had testified incorrectly on two occasions, instead of only in one instance.
b. Cause and Prejudice
Rubio also argues that he can show cause and prejudice to enable the Court to disregard
the procedural default as to Claim Nine. He cannot.
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First, Rubio contends that he establishes cause because the State relied on Merillat’s
testimony at trial without the jury hearing about his testimony in Velez. (Reply, Doc. 87, 120) The
fatal defect in this position, however, is that Rubio makes no attempt to explain why he could not
have raised Claim Nine in the 2013 Habeas Application. At the time of the second trial, Rubio’s
counsel knew of the Estrada decision, and by 2013, they knew of Velez. Rubio presents no reason
why he lacked the factual or legal basis to present Claim Nine in 2013. A showing of cause requires
that the petitioner identify an external factor that precluded the presentation of the claim in the
initial habeas application. Rubio identifies no such external factor.
c. Merits Review (in the alternative)
As explained, Rubio’s Claim Nine fails because it is procedurally defaulted and Rubio has
not demonstrated that any exception applies that would enable the Court to disregard the default.
The Court’s analysis of the alleged Brady violation would also lead the Court to deny the claim on
the merits, as Rubio has not satisfied the elements for such a claim.
4. Claim Ten: Trial Counsel Ineffective in Preparation for Merillat’s
Testimony
In this claim, Rubio faults his trial counsel for “not retain[ing] an expert on prison
classifications, despite being on notice of Merillat’s previous false testimony regarding the subject
in Estrada.” (Pet., Doc. 61, 174) Rubio asserts that trial counsel should have hired an expert, like
AuBuchon, to “assist[] trial counsel in establishing that Merillat’s testimony was false.” (Id. at 175)
He adds that even if his defense team did not need to retain an expert, they should have researched
the TDCJ classification system more thoroughly, so as to cross-examine Merillat more rigorously.
Ultimately, he contends that an effective attorney could have “presented the accurate version of
TDCJ’s classification system” and “emphasized the significant restrictions TDCJ places on
inmates.” (Id. at 161)
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Rubio concedes that Claim Ten is procedurally defaulted, as he did not present the claim
until his 2021 Habeas Application. He argues, however, that the Court should disregard the
procedural default under Martinez, because his habeas counsel provided ineffective assistance of
counsel by not raising the claim in the 2013 Habeas Application. (Id. at 176–177)
Under Martinez, to overcome the procedural default, 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 must first demonstrate that his trial counsel’s performance with respect to the issue
of the TDCJ classification system and Merillat’s testimony fell below an objective standard of
reasonableness. In essence, Rubio argues that his trial counsel should have retained an expert to
controvert Merillat, and should have more effectively prepared for cross examination. Rubio faces
a significant hurdle. Not only do courts typically engage in a deferential review when considering
Strickland claims, with respect to issues such as the selection of experts and the cross examination
of witnesses, courts apply ample latitude, considering that such matters fall squarely within the
discretion of trial counsel, enabling them to make difficult strategic decisions within a “wide range
of reasonable professional assistance.” Nelson v. Davis, 952 F.3d 651, 659 (5th Cir. 2020); see
also Rhoades v. Davis, 852 F.3d 422, 434 (5th Cir. 2017) (describing such choices made by
counsel as “virtually unchallengeable” under Strickland.).
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In the present case, Rubio’s counsel cross-examined Merillat regarding the TDCJ
classification system and his false testimony in Estrada. The record does not support the
conclusion that their efforts fell outside the ambit of reasonable professional assistance. While
Rubio may be able to identify lines of questions that his defense team should have used with
Merillat, the ability to do so represents nothing more than “Monday-morning quarterbacking on
a Thursday”. United States v. Molina-Uribe, 429 F.3d 514, 520 (5th Cir. 2005). Such challenges
cannot support a Strickland claim.
b. Substantial Claim: Prejudice
In addition, Rubio cannot establish prejudice from any deficiencies in his trial counsel’s
performance. He identifies no information that his defense team should have presented to the
jury, whether through the cross examination of Merillat or via an expert of their own, that creates
the “reasonable probability” of changing the outcome of the punishment phase. Rubio’s own
conduct while incarcerated hinders his ability to demonstrate prejudice as to Claim Ten. Even if
his defense team had given greater emphasis to the restrictions that Rubio would face in TDCJ’s
general population, the State also presented testimony that Rubio had been housed under the
strictest levels of confinement and had nevertheless acted violently and harmed others. The jury
also heard that Rubio managed to possess marijuana while incarcerated. In light of this record,
Rubio cannot demonstrate that a different result would have ensued through a more robust cross
examination of Merillat or the creation of a battle of the experts.
c. State Habeas Counsel’s Performance
Apart from failing to demonstrate that he presents a substantial claim, Rubio also fails to
show that his state habeas counsel provided ineffective assistance by failing to raise Claim Ten in
the 2013 Habeas Application.
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Under this prong of the analysis, Rubio must “show that habeas counsel was ineffective in
failing to present [the claim] in his first state habeas proceeding.” Garza, 738 F.3d at 676. He
must further 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, 756 F.3d at 872; see also
Canales, 765 F.3d at 571. “The likelihood of a different result must be substantial, not just
conceivable.” Wessinger, 864 F.3d at 391 (quoting Richter, 562 U.S. at 112).
It is axiomatic that reasonable habeas attorneys may “winnow out weaker arguments” to
increase the probability of success on stronger claims. Kossie, 423 F. App’x at 437. In the present
case, Claim Ten represents a particularly weak claim. By 2013, the Estrada and Velez decisions
were public record. But those rulings revealed only that Merillat had provided “unintentionally
inaccurate” testimony. In Rubio’s case, Merillat had not even repeated the erroneous information,
and the defense cross examined him about his inaccurate testimony in Estrada. In that context,
Rubio’s state habeas counsel had to decide whether to present a claim based on quintessential
trial tactics and strategic decisions. Rubio has not demonstrated that he should have.
Moreover, no reasonable probability exists that had Claim Ten appeared in the 2013
Habeas Application, the TCCA would have granted relief to Rubio. In fact, other individuals have
presented claims in habeas that concerned Merillat’s testimony and were based on the Estrada
and Velez decisions. In those cases, the courts have consistently found no error that warranted
relief. See, e.g., Ex parte Norman, Nos. WR–74,743–01, WR–74,743–02, 2012 WL 3600318, at
*1 (Tex. Crim. App. 2012) (not designated for publication) (rejecting AuBuchon’s opinion that
Merillat testified falsely); Ex parte Swain, No. WR–64,437–02, 2012 WL 5452217, at *1 (Tex.
Crim. App. 2012) (not designated for publication) (refusing to find any error in Merillat’s
testimony when he did not make the same mistake as in Estrada); Sparks v. Davis, No. 3:12-CV-
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469-N, 2018 WL 1509205, at *15 (N.D. Tex. 2018) (finding no constitutional error when Merillat
made the same mistake in a 2008 trial as he had in Estrada and Velez, but which the defense
corrected on cross-examination); Devoe v. Stephens, No. A–14–CA–151–SS, 2014 WL 5684997,
at *2 (W.D. Tex. 2014) (refusing to allocate funds to retain AuBuchon when “[i]n Devoe’s trial,
Merillat did not repeat the factual inaccuracy presented in Estrada” and “[t]he testimony in
Devoe’s trial made clear an inmate with a capital murder conviction could not obtain a less
restrictive classification than a G–3 classification). While these cases concerned different types
of challenges, they collectively reflect that claims based on Merillat’s false testimony in Estrada
and Velez have proven ineffective. They render it less likely that the TCCA would have favorably
viewed any claim based on Merillat’s testimony in Rubio’s case, had one been included in the 2013
Habeas Application.
d. Merits Review (in the alternative)
Rubio has not satisfied the requirements of Martinez to overcome the procedural bar as
to Claim Ten. But even if the Court considered the claim on de novo review, it would deny the
challenge. The record does not support the conclusion that Rubio’s trial counsel provided
ineffective assistance of counsel through their preparation for and cross examination of Merillat,
or in the decision to not present their own expert regarding the TDCJ classification system and
other issues related to Texas prisons.
V.
Discovery Motion
In addition to filing his Petition, Rubio also moved for discovery as to his prosecutorial-
misconduct and false-evidence claims (Claim Four through Claim Nine). (Mot. for Discovery, Doc.
88) Specifically, he requested the authorization to depose Villalobos and another prosecutor, and
an order for the production of various categories of documents, including: materials held by the
Cameron County District Attorney’s Office relating to any polling conducted about whether to
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seek the death sentence in Rubio’s case; documents related to civil assert forfeiture funds used to
hire the State’s expert witnesses; documents regarding the State’s interference with defense
funding and the abuse of its subpoena power; and materials relating to Dr. Welner’s and Merillat’s
testimony.
On March 28, 2024, the Court denied the Motion for Discovery. (Order, Doc. 93) In this
section, the Court explains the grounds for that ruling.
Traditional habeas law limits a petitioner’s ability to engage in discovery. “A habeas
petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of
ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997); Anderson v. Butler, 886 F.2d 111,
113 (5th Cir. 1989) (noting that in the Section 2254 context, “the writ of habeas corpus is no
ordinary civil proceeding”). Rule 6(a) of the Rules Governing Section 2254 Cases in the United
States District Courts provides that “[a] judge may, for good cause, authorize a party to conduct
discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery.” Good
cause exists where the allegations before the court show reason to believe that the petitioner may,
if the facts are fully developed, be entitled to habeas relief. Bracy, 520 U.S. at 908–09.
Still, as an initial matter, “before facilitating the development of new evidence,” courts
must “determine that it could be legally considered in the prisoner’s case.” Shoop, 142 S. Ct. at
2044. A petitioner typically cannot show good cause for discovery as to a claim in federal court if
procedural impediments preclude considering the merits of that claim. Campbell v. Dretke, 117
F. App’x 946, 959 (5th Cir. 2004). In addition, under AEDPA, if a petitioner has “failed to develop
the factual basis of [his] claim in State court proceedings,” 28 U.S.C. § 2254(e)(2), a federal court
may allow discovery and admit new evidence in only two situations: (1) “[e]ither the claim must
rely on a ‘new’ and ‘previously unavailable’ ‘rule of constitutional law’ made retroactively
applicable by [the United States Supreme] Court”; or (2) “it must rely on a ‘factual predicate that
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could not have been previously discovered through the exercise of due diligence.’” Shoop, 142 S.Ct.
at 2044.
In the present case, Rubio did not request from Texas state courts the discovery that he
now seeks on federal review. At most, in his 2021 Habeas Application, he generally requested that
“discovery as may be necessary to a full and fair resolution herein be allowed.” (Habeas Record,
Doc. 81–3, 195) But he did not specify the nature of the request and did not otherwise develop
the factual basis for it.
In his Motion for Discovery, Rubio does not rely on any previously unavailable rule of
constitutional law and has not shown that he could not have developed his claims for presentation
in his 2021 Habeas Application, or earlier, if he had been diligent. In addition, the claims for
which he seeks discovery are procedurally defaulted, and as explained in this Order and Opinion,
no exception applies so as to disregard the procedural bar. He otherwise has not shown good
cause for discovery.
As a result, the Court concludes that Rubio is not entitled to the discovery that he requests.
VI.
Conclusion
For the reasons in this Order and Opinion, it is:
ORDERED that John Allen Rubio’s Second Amended Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2255 (Doc. 61) is DENIED and his claims are DISMISSED WITH
PREJUDICE.
VII.
Certificate of Appealability
Under AEDPA, a prisoner cannot seek appellate review from a lower court’s judgment
without receiving a Certificate of Appealability. See 28 U.S.C. § 2253(c). Rubio has not yet
requested that this court grant him a COA, but the district court must rule upon a certificate of
appealability when it “enters a final order adverse to the applicant.” Rule 11, RULES GOVERNING
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§ 2254 PETITIONS. “The COA statute establishes procedural rules and requires a threshold inquiry
into whether the circuit court may entertain an appeal.” Slack v. McDaniel, 529 U.S. 473, 482
(2000). A court may only issue a COA when “the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The severity of an inmate’s punishment, even a sentence of death, “does not, in and of
itself, require the issuance of a COA.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). Still,
“any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.”
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
A district court that has denied habeas relief on procedural grounds should issue a
certificate of appealability only “when the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim of 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.” Id. “Where a district court has rejected the constitutional claims on the merits,
the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Slack, 529 U.S. at 484. In making these determinations, courts view a petitioner’s
arguments “through the lens of [AEDPA’s] deferential scheme”. Druery, 647 F.3d at 538. If a
prisoner does not meet the applicable standard, “no appeal would be warranted.” Slack, 529 U.S.
at 484.
Rubio raises important issues, and the Court has considered them carefully. Based on its
review of the extensive record, the arguments of counsel as presented in their substantial briefing,
and the applicable law, including the AEDPA standards and controlling precedent, the Court finds
that a certificate of appealability should not issue on any of Rubio’s claims.
All other relief not expressly granted is denied.
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The Court will separately issue a Final Judgment in accordance with this Order and
Opinion.
Signed on April 5, 2024.
____________________________
Fernando Rodriguez, Jr.
United States District Judge
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