A state official’s motion has failed to have Judge Rolando Olvera recused from a death row inmate’s case, according to court documents obtained by The Brownsville Herald this week.
Bobby Lumpkin, director of Texas Department of Criminal Justice Correctional Institutions Division, filed the motion March 14 to have Olvera removed from matters involving death row inmate John Allen Rubio. The director of state prisons asked that the case be assigned to a new judge.
However, Lumpkin’s motion was denied by the U.S. District Court for the Southern District of Texas Brownsville Division.
“This motion… is not a high-minded gesture to impartial adjudication; it is an attempt to shop for a more receptive judge after Judge Rolando Olvera refused to declare Rubio’s claims meritless,” states the response to Lumpkin’s motion to recuse. “And it traffics in an unserious theory that a judicial determination adverse to Rubio in an earlier case creates an appearance of bias sufficient for the Director to move for recusal. There is no legally cognizable ground for recusal associated with Judge Olvera’s judicial role in a collateral challenge to an earlier conviction.”
The decision argued that Lumpkin’s recusal motion is late and that the director lacked the ground to seek recusal.
Following a 2003 capital conviction, Rubio pursued state habeas relief before then-state Judge Olvera, who denied the inmate’s requests. However, Olvera’s recommendation for denial took no effect because Rubio’s 2003 capital murder conviction was vacated by the Texas Court of Criminal Appeals in 2007.
The defendant was convicted in a second trial in 2010 and again sentenced for the brutal slayings of three children in Brownsville.
In the 2010 retrial, a jury found Rubio guilty in the beheading of Julissa Quesada, 3; John E. Rubio, 14 months; and Mary Jane Rubio, 2 months. The three children belonged to his common-law wife Angela Camacho, though John Allen fathered Mary Jane.
According to court records, Rubio admitted to killing his children because he thought they were possessed by the spirit of his dead grandmother. Records indicated that Rubio and Camacho had discussed burying the childrens’ bodies and fleeing to Mexico.
In Rubio’s first petition, attorneys claimed that Rubio’s appointed defense in his murder trial did not represent him properly and that his case was handled by a district attorney that was steeped in scandal and misconduct.
“In 2010, Rubio was again convicted and sentenced to death, and that is the criminal judgment at issue here,” the documents denying Lumpkin’s motion state. “Following the 2010 trial, Rubio pursued relief in the state habeas and direct appeal proceedings. This time, Judge Noe Gonzalez presided over the state habeas proceeding, and he recommended denial of relief on all state habeas claims.”
The (Texas Court of Criminal Appeals) adopted that recommendation, the document stated.
The decision further stated that Olvera’s judicial role in a prior case was outside the scope of disqualification rules in this matter—and that there was no bias nor appearance of bias that the state official could argue because “Judge Olvera’s prior adjudication was adverse to Rubio.”
