John Allen Rubio v. Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division

The Fifth Circuit refused to certify John Allen Rubio’s appeal on, among other things: (1) a claim under Napue v. Illinois, 360 U.S. 264 (1959), that the State knew that testimony from its mental health expert was false; and (2) an ineffectiveassistance-of-trial-counsel (IATC) claim that Rubio’s defense lawyers deficiently investigated fetal alcohol exposure. This Petition presents the following two Questions, and Rubio suggests that a summary reversal is appropriate for both.

1. Did the Fifth Circuit err in refusing to certify the Napue claim, when it failed to reach punishment-phase harm and when it conflated the question of whether an expert testified falsely on a predicating fact issue with the question of whether a reasonable juror could vote for an insanity defense?

2. Did the Fifth Circuit err in refusing to certify the IATC claim, when the basis for doing so was that a finding against a claimant on § 2254(d)(1) relieves a district court of the obligation to reach § 2254(d)(2)—notwithstanding the fact that the exceptions to § 2254(d) are disjunctive?