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Metcalf v. Allbaugh

United States District Court, E.D. Oklahoma

February 7, 2017

DUSTIN METCALF, Petitioner,
v.
JOE M. ALLBAUGH, DOC Director, Respondent.

          REPORT AND RECOMMENDATION

          KIMBERLY E. WEST UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Magistrate Judge on Petitioner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is a pro se inmate in the custody of the Oklahoma Department of Corrections who currently is incarcerated at Cimarron Correctional Facility in Cushing, Oklahoma. He is attacking his conviction and sentence in Bryan County District Court Case No. CF-2011-413 for Second Degree Murder.

         The respondent concedes that Petitioner has exhausted his state court remedies for the purpose of federal habeas corpus review. The following records have been submitted to the court for consideration in this matter:

A. Petitioner's Judgment and Sentence B. Petitioner's application for post-conviction relief.
C. Summary Disposition of Petitioner's application for post-conviction relief by the Bryan County District Court.
D. Petitioner's second application for post-conviction relief.
E. Summary Disposition of Petitioner's second application for post-conviction relief.
F. Petitioner's brief in support of post-conviction appeal.
G. Order Affirming Denial of Subsequent Application for Post-Conviction Relief. Metcalf v. State, No. PC-2014-820 (Okla. Crim. App. Jan. 8, 2015).

         Respondent alleges the state procedural bar must be applied to each of Petitioner's grounds for relief. Respondent further asserts Petitioner cannot show ineffective assistance of counsel as “cause” for his procedural default, nor can he show that application of the bar will result in a fundamental miscarriage of justice. Petitioner has raised five grounds for habeas relief:

I. Trial counsel acted “objectively unreasonable” [sic] and was ineffective for advising Petitioner to enter a blind plea.
II. Counsel was ineffective for allowing plea offer to expire and for advising Petitioner to reject plea offer.
III. Trial counsel was ineffective for advising Petitioner that it was not possible to change plea decision.
IV. The State violated Petitioner's due process rights by denying him access to a potentially exculpatory eyewitness and by encouraging this and ...

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