Jacobs
Jacobs v. Cate
Opinion
Lead Opinion
MEMORANDUM ***
A California jury convicted appellant Harvey Barry Jacobs of the second degree murder of his wife, Nadine, after a three-week-long trial in which more than thirty witnesses testified. The California Court of Appeal affirmed his conviction and the California Supreme Court denied review. After unsuccessfully seeking habeas relief in the California courts, Jacobs sought federal habeas relief. The magistrate judge assigned to the case recommended denial of Jacobs’s petition in a thoughtful and comprehensive report and recommendation. The district court overruled Jacobs’s objections to the report and recommendation and adopted it in its entirety. This timely appeal followed.
The prosecution’s theory of the case was that Jacobs and Nadine had a fight during which Jacobs hit Nadine over the head and then strangled her to death. Jacobs’s theory was that Nadine stayed up alone that night drinking wine and binge-eating, eventually choking on pastry. He claims that when he came downstairs to cheek on her, she was face-down on the kitchen floor. He then turned her over and tried unsuccessfully to resuscitate her before calling 911.