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Parson v. Keith

February 5, 2009

RANDY DALE PARSON, PETITIONER-APPELLANT,
v.
JIM KEITH, WARDEN, RESPONDENT-APPELLEE.



(W.D. Oklahoma) (D.C. No. 5:07-CV-00994-M).

The opinion of the court was delivered by: Robert H. Henry Chief Judge

ORDER

Before HENRY, Chief Judge, ANDERSON, and BALDOCK, Circuit Judges.

Randy Dale Parson, proceeding pro se, seeks a certificate of appealability ("COA") to appeal the district court's dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. He argues that the state failed to produce exculpatory evidence as required by Brady v. Maryland and violated his due process rights. We deny his application for a COA and dismiss this matter.

I. BACKGROUND

On September 29, 2003, Ashley Bethel accepted a ride from a Conoco store in Ponca City, Oklahoma, from Mr. Parson. According to Ms. Bethel, Mr. Parson drove her to a back road in Tonkawa, Oklahoma, pulled a scalpel out of his pocket, and ordered her to undress. Mr. Parson forced her face down in the seat of his vehicle, tied her feet together and then tied her feet to her hands. After driving around for some time, Mr. Parson removed Ms. Bethel from the car and placed her on the ground. When Ms. Bethel started to scream, Mr. Parson punched her several times in the face, breaking her jaw.

Later, Mr. Parson put Ms. Bethel into his car and drove to an abandoned trailer house. There, he then raped and sodomized her repeatedly. When he was finished, he placed Ms. Bethel into the trunk of his car, drove to a bridge, and tossed her over the bridge. He then sat on top of Ms. Bethel with his knees on her shoulders and began pushing her head under water. He choked her and slammed her head on the ground.

Afterwards, Mr. Parson left, saying that he was going to get a motel room. Ms. Bethel yelled for help, and a truck driver stopped and called for assistance. Mr. Bethel was taken to a nearby hospital and treated for physical injuries and hypothermia.

A state jury in Kay County, Oklahoma, convicted Mr. Parson of first-degree rape (Counts I, II, and III), forcible sodomy (Count IV), assault and battery with intent to kill (Count V), second-degree rape (Counts VI and VII), kidnaping (Count X), and aggravated assault and battery (Counts XI and XII). His sentences total 165 years of imprisonment.

The Oklahoma Court of Criminal Appeals ("OCCA") affirmed his convictions and denied Mr. Parson's subsequent petition for rehearing. Mr. Parson filed an application for post-conviction relief in the state district court, which was denied. The OCCA affirmed that decision.

Mr. Parson then filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, arguing that (1) his due process rights were violated because the state failed to produce exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) his due process rights were violated because he did not receive the benefit of the OCCA's ruling in Anderson v. State, 130 P.3d 273, 277-283 (Okla. Crim. App. 2006) (regarding Oklahoma's requirement that a jury be notified that a defendant is required to serve 85% of his sentence before being eligible for parole); (3) his double jeopardy rights were violated because his convictions amounted to multiple convictions for the same offense; (4) his due process rights were violated because Ms. Bethel's in-court identification of him was unduly suggestive; (5) the evidence was insufficient to support his convictions; (6) his trial and appellate counsel were ineffective; (7) his sentence was excessive, in violation of his Eighth and Fourteenth Amendment rights; and (8) cumulative error denied him a fair trial.

In a thorough report and recommendation, the magistrate judge rejected all of Mr. Parson's claims. Rec., vol. II, doc. 14 (Mag. Rep. and Rec., filed April 23, 2008). The district court adopted the report and recommendation and denied Mr. Parson's habeas petition.

Mr. Parson now seeks a COA to appeal the district court's dismissal of his petition, arguing that his due process rights were violated because (1) the state failed to produce exculpatory evidence in violation of Brady; and (2) Ms. ...


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