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Jacobs v. Allbaugh

United States District Court, E.D. Oklahoma

March 29, 2018

JOE W. ALLBAUGH, Warden, Respondent.


          Ronald A. White, United States District Judge.

         This matter is before the Court on Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is a pro se prisoner currently incarcerated at Davis Correctional Facility in Holdenville, Oklahoma. He is challenging his conviction in Pushmataha County District Court Case No. CF-2010-25 for First Degree Felony Murder During the Commission of a Robbery with a Dangerous Weapon, or in the alternative, First Degree Malice Aforethought Murder. He sets forth the following grounds for relief:

I. The evidence was insufficient to convict Petitioner of First Degree Murder beyond a reasonable doubt.
II. The prosecutor impermissibly used prior statements made by State's witness Chris Dill as substantive evidence of guilt.
III. Petitioner was denied effective assistance of trial counsel.
IV. The accumulation of errors deprived Petitioner of a fair trial.

         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 direct appeal brief.
B. The State's brief in Petitioner's direct appeal.
C. Summary Opinion affirming Petitioner's Judgment and Sentence.
D. Transcripts
E. State court record.

         Standard of Review

         Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus relief is proper only when the state court adjudication of a claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).


         Sometime between midnight and 6:00 a.m. on April 5, 2010, Petitioner beat, shot, and killed Robert Edward Strickland and dumped his body alongside a rural mountain road in Pushmataha County. (Tr. II, 286, 289, 293-98; Tr. III, 503-505; State's Exs. 54-62, 91, 97). After dumping Mr. Strickland's body, Petitioner drove Mr. Strickland's vehicle to another location and set it on fire. (Tr. II, 396-403; Tr. III, 526-29; State's Exs. 1-12, 97).

         Before Mr. Strickland was killed, he was lured to a rural road where he thought he was meeting Petitioner's friend, Karrie McKeever. (Tr. II, 274-76; 382-83). Mr. Strickland and Ms. McKeever were acquaintances, and Mr. Strickland had sold drugs to Ms. McKeever on past occasions. (Tr. II, 278, 288, 318, 383). On that night, Ms. McKeever had sent several text messages to Mr. Strickland, claiming she was stranded with a friend and needed help repairing her vehicle. (Tr. II, 275-76, 379-83). In reality, Petitioner, Ms. McKeever, Natasha Cathey, and Clifton Parish, who had been driving around together that night in Petitioner's truck, intended to rob Mr. Strickland of his drugs and money. (Tr. II, 272-76, 279).

         When Mr. Strickland first arrived at the location referred to as the Messer area clearing, he saw Ms. McKeever and Ms. Cathey arrive in Petitioner's truck. (Tr. II, 276-78). Ms. McKeever and Ms. Cathey had dropped off Petitioner and Mr. Parrish several yards back, so they could hide in the woods and not be seen by Mr. Strickland. (Tr. II, 276-77). Once at the Messer area clearing, Ms. McKeever and Ms. Cathey got into Mr. Strickland's SUV and smoked some methamphetamine that Mr. Strickland had brought with him. (Tr. II, 277-79). While smoking, Ms. Cathey observed Mr. Strickland's black handgun in the passenger seat. (Tr. II, 279, 350, 384-85; State's Ex. 69). Mr. Strickland never picked up the weapon while they were in the vehicle. (Tr. II, 279). After several minutes Ms. Cathey and Ms. McKeever exited Mr. Strickland's vehicle and walked back to Petitioner's truck. (Tr. II, 279-81).

         When Mr. Strickland drove off, Petitioner and Mr. Parish walked out of the woods and back to the truck. (Tr. II, 280-82). After some discussion between the four, Ms. McKeever called Mr. Strickland on her cell phone and asked him to come back to the clearing so they could look for Ms. Cathey's car keys. (Tr. II, 282). This time, when Mr. Strickland came to the clearing, Petitioner stood next to his truck, and Mr. Parish hid in the woods. (Tr. II, 282-83). When Mr. Strickland stopped his SUV, Ms. McKeever opened the passenger door on the ruse of looking for Ms. Cathey's car keys. (Tr. II, 283-84). Instead, she grabbed Mr. Strickland's .22 caliber gun from the seat. (Tr. II, 284, 347-48, 350). When Mr. Strickland asked what was going on and exited his vehicle, Petitioner grabbed Mr. Strickland from behind and wrapped his arms around his body. (Tr. II, 284-86, 288, 315). Mr. Parish came out of the woods and proceeded to beat Mr. Strickland on his face and head with his fists and the gun, while Petitioner kept Mr. Strickland restrained. (Tr. II, 284-88, 350). After the two beat Mr. Strickland until he was lying on the ground bleeding extensively from his head, Mr. Parish dragged Mr. Strickland to a mud hold where he washed the blood off Mr. Strickland's face and told him to stay away from Ms. McKeever. (Tr. II, 286-88, 350). Petitioner and Mr. Parish then loaded Mr. Strickland in the cargo area of his SUV. (Tr. II, 289).

         Ms. Cathey and Petitioner left the Messer area clearing in Mr. Strickland's SUV, while Mr. Parish and Ms. McKeever left the clearing in Petitioner's truck. (Tr. II, 289-90). Upon orders from Petitioner, Ms. Cathey drove to an isolated area known as Frazier Creek and stopped the SUV. (Tr. II, 289-94). When the vehicle stopped, Mr. Strickland, even in his injured state, somehow was able to escape the cargo area and attempt to run away. (Tr. II, 294). Petitioner jumped out of the vehicle and chased after Mr. Strickland. (Tr. II, 293-94). Ms. Cathey, who had remained in the vehicle, heard someone yell “no” and then heard a gunshot. (Tr. II, 294-96). After the shot, Petitioner returned, uninjured, to the vehicle and backed it up to where Mr. Strickland was lying prone on the ground near the ditch. (Tr. II, 296-97). Ms. Cathey watched as Petitioner got out, picked up a large rock, and threw it down toward Mr. Strickland's head. (Tr. II, 297-98, 332). Petitioner then loaded Mr. Strickland back into the cargo area of the vehicle. (Tr. II, 298-99). At that point Ms. Cathey did not know if Mr. Strickland was still alive. (Tr. II, 301-02). She heard a “weird noise” coming from Mr. Strickland that did not sound like normal breathing, but rather like air coming from his body. (Tr. II, 301-02).

         After leaving the scene, Petitioner drove the victim's SUV to his parents' house with Ms. Cathey and the victim. (Tr. II, 299-01, 339). He parked the SUV and ran inside the house to change his bloody clothing. (Tr. II, 301-02). Petitioner then told Ms. Cathey he was taking the victim to the hospital and left Ms. Cathey with Mr. Parish and Ms. McKeever, who had arrived at the house in Petitioner's truck. (Tr. II, 302-03, 334). Once Petitioner left, Ms. Cathey, Mr. Parish, and Ms. McKeever took the money they had stolen from the victim to buy gas and minutes for a cell phone, to gamble at a casino, and to get a tattoo. (Tr. II, 303-08). Mr. Parish also kept part of the victim's drugs for himself. (Tr. II 307-08).

         Petitioner did not take the victim to the hospital. (Tr. IV, 670). Instead, he drove down a two-lane dirt road to a pine plantation and dumped the victim's body. (Tr. III, 538-45; Tr. IV, 643, 667-72; State's Exs. 54-62, 92-94). He next drove approximately three miles to another dirt road where he parked the vehicle and set it on fire. (Tr. III, 527-30; Tr. IV, 667-72; State's Exs. 1-12, 92-94). He then went to a remote cabin a few miles away, where he stopped for a period of time, signed the guest register, and took the homeowner's shoes when he left. (Tr. III, 515-16, 519, 521, 523; State's Exs. 84-86, 92-94).

         Petitioner next arrived at the home of his friend John Wesley Taylor in Rattan, Oklahoma. (Tr. IV 593-95). He woke up Mr. Taylor and told him he had been hunting and needed to wash some blood off his hands. (Tr. IV, 595-99). The next day Petitioner and Ms. Cathey returned to Mr. Taylor's house to “unload some junk” from the back of Petitioner's truck. (Tr. IV, 599-600). After unloading the items, the three stopped at a church where Petitioner and Mr. Taylor smoked methamphetamine. (Tr. IV, 600-01). Petitioner told Mr. Taylor he had obtained the methamphetamine when he beat up “the dope man” and took his drugs. (Tr. IV, 601-02). Petitioner had stolen so much dope from “the dope man” that he gave some to Mr. Taylor. (Tr. IV, 601-02).

         The victim's burned-out SUV was discovered and reported to the police around 6:00 a.m. on April 5, 2010. (Tr. II, 396-98; 403; State's Exs. 1-12). The victim's girlfriend reported him missing to police on April 6, 2010. (Tr. II, 388; Tr. III, 432-33). After the missing person's report and the burned-out vehicle were connected, law enforcement officials discovered the Messer area scene where the victim had been beaten. (Tr. II, 398-403; State's Ex. 95). Passers-by later discovered blood, gun parts, and bullets at the Frazier Creek scene and reported their findings to police. (Tr. III, 416-423).

         On April 8, 2010, Petitioner was taken into custody and interviewed by agents with the Oklahoma State Bureau of Investigation (“OSBI”). (Tr. IV, 676, 710-15; State's Ex. 97). After numerous denials and stories about what had happened to the victim, Petitioner admitted his involvement. (Tr. IV, 686-87, 710-15; State's Ex. 97). He claimed, however, that he and the victim got into a “scuffle, ” and the victim shot himself when the gun went off during the fight. (State's Ex. 97). He also told the agents he was trying to take the victim to the hospital when he realized the victim was dead. Id. During the interview he refused to tell the agents what he had done with the victim's body. Id.

         The victim's body was discovered by a search party in the pine plantation on April 12, 2010. (Tr. III, 501-05, 510; State's Exs. 89, 95). The body was in an advanced state of ...

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