from the United States District Court for the Southern
District of Georgia D.C. Docket No. 2:07-cv-00090-LGW-JEG
Petition for Rehearing by the Panel
ED CARNES, Chief Judge, MARCUS, and NEWSOM, Circuit Judges.
CARNES, CHIEF JUDGE.
Appellant, Jimmy Fletcher Meders, filed a petition for
rehearing en banc, which under our rules also counts as a
petition for panel rehearing. See 11th Cir. R. 35,
I.O.P. 2 ("A petition for rehearing en banc will also be
treated as a petition for rehearing before the original
panel."); Cadet v. Fla. Dep't of Corr., 853
F.3d 1216, 1218 (11th Cir. 2017) ("At least until an
order granting or denying the petition for rehearing en banc
is issued, a panel retains authority to modify its decision
petition, insofar as it requests panel rehearing, is granted
to the extent that we vacate our earlier opinion, Meders
v. Warden, Ga. Diagnostic Prison, 900 F.3d 1330 (11th
Cir. 2018), and issue this one in its place.
petition for rehearing en banc remains pending. In light of
the issuance of this revised panel opinion, the Appellant is
granted 21 days to file a supplement to his petition for
rehearing en banc, if he wishes to do so. See Fed.
R. App. P. 40(a)(4)(C); cf. CSX Transp., Inc. v. Ala.
Dep't of Revenue, 888 F.3d 1163, 1188 n.14 (11th
Cir. 2018). He is not required to file a supplement. If he
does file one and the Court desires a response from the
Appellee, one will be requested.
revised opinion follows:
Jimmy Fletcher Meders, a Georgia prisoner, filed a 28 U.S.C.
§ 2254 petition in the Southern District of Georgia
raising 18 claims. After the district court denied his
petition, Meders moved for a certificate of appealability on
several of his claims. The district court granted that motion
only as to his claim alleging that trial counsel was
ineffective at the guilt phase of his trial. This is his
facts that follow in these two paragraphs are not disputed.
On October 13, 1987, Meders went to help his boss, Randy
Harris, fix a car at Harris' house. Bill Arnold and Greg
Creel later arrived at the house. Arnold is Harris'
cousin, and Creel is Arnold's friend. Meders, Harris,
Arnold, and Creel spent the afternoon drinking beer and
liquor. The four of them went to a Best Western motel later
that evening, where Harris had rented a room for a young
woman with whom he was having an extramarital affair. Meders,
Arnold, and Creel left the motel later that night.
2:35 the next morning (October 14), the three men stopped by
a Jiffy Store. Don Anderson, the store clerk, was shot twice
- once in the chest, once in the head - and he died. The
weapon used in the shooting was a Dan Wesson .357 Magnum
revolver. Meders took between $31 and $38 from the cash
register. Included in the cash taken were two $1 bills and a
$5 bill that the store manager had planted as bait money -
she had written down the three bills' serial numbers and
kept them in the store's records so that the money could
be identified if the store was robbed and the money was
recovered. That bait money and some food stamps were found in
Meders' wallet and in his house after he was arrested
later that same day. The murder weapon was found under his
bed two days later.
was indicted in Georgia state court in December 1987 for the
murder and armed robbery of Anderson, the store clerk. The
case proceeded to a jury trial.
the claim Meders presses in this Court involves the trial
testimony of several of the State's witnesses, we recount
their testimony in some detail.
State first called Harris to the stand. He testified that he
spent the afternoon of October 13 drinking with Meders,
Arnold, and Creel. He paid Meders about $200 for his work on
a car, and while they were sitting around drinking and
talking, Meders kept mentioning that he owed some people in
Florida $2, 000 for some drugs, and that they were
"going to come down here and kill him if he didn't
testified that later that evening all four men went to a Best
Western motel. They continued to drink, "smoked a joint
or two," and sat around talking in the motel room.
Meders, Arnold, and Creel left the motel around 8:30 p.m. But
Meders returned to it around 3:15 a.m. After he did so,
according to Harris, Meders pulled out a revolver and told
him: "I just blowed a man's head off over
$38.00." Harris thought he was joking, so Meders threw
some cash and some "little white pieces of paper"
about "the same size [as] a dollar bill" on the
bed. Meders also opened the revolver's chambers and
dumped the bullets on the bed. Harris said that two of the
bullets had been "freshly fired." He testified that
Meders picked up the cash and the pieces of paper, put them
back in his pocket, and left the motel.
testified that around that same time, Arnold called his motel
room and asked Harris to pick up Creel and him from a trailer
park. Harris drove Creel's truck to the trailer park,
picked up both of them, and took them to Harris' house.
After arriving at his house around 4:00 or 5:00 a.m., Harris
urged the two of them to go to the police and report what had
happened. He testified that the three of them talked for
about an hour and then all three went to sleep at his house.
Around 9:00 a.m., Harris woke up and went to his shop; the
police questioned him there and then took him to the police
station for more questioning.
testified next for the State. He stated that he, Harris,
Arnold, and Meders had spent the afternoon of October 13
drinking before going to the Best Western later that evening.
After spending a few hours in the motel room, he, Arnold, and
Meders left and went riding around, stopping at a couple of
bars. Arnold was driving, Meders was in the passenger seat,
and Creel was in the back seat. They later stopped at a Jiffy
Store because Creel was hungry. He testified that both he and
Meders got out of the car and went into the store. Once
inside, Creel grabbed a Yoo-hoo and a package of sausage and
biscuits. While he was heating up his sausage and biscuits in
a microwave in the back of the store, he heard a gunshot. He
turned around and saw the store clerk falling against the
wall and Meders facing the wounded clerk.
testified that he "tore out" of the store, and as
he was running out, he heard a second gunshot. He exited the
store, jumped in the back seat of the car, and told Arnold to
"go" because Meders had "just shot a
man." He recounted how Meders had run out of the store,
jumped in the front passenger seat of the car, and pointed
his gun at Arnold and Creel. Arnold drove to Shady Acres, a
trailer park, where he and Creel got out. Meders got in the
driver's seat, and Arnold told Meders "to never come
around him again." Meders asked Arnold and Creel if they
wanted any of the money or food stamps he had taken from the
store. They both said no, that they didn't want any part
of it. Creel and Arnold then walked to one of the trailers
where they called Harris to pick them up. Creel testified
that he didn't know Meders until the day before the
shooting, that he didn't know that Meders had a gun until
the shooting, and that he had no idea that Meders was going
to rob the store or shoot the clerk. He also stated that he
had given the police two statements about the incident: one
on October 15, and one a few weeks later.
cross-examination Creel confirmed that, after they all were
finished drinking at Harris' house, they did not take
Meders back to his house but instead went to the Best
Western. For that reason, Creel thought Meders "must
have" had the gun on him during the afternoon of October
13. Defense counsel also asked Creel whether he shot at a
couple of trucks while they were riding around that evening.
Creel testified that he did not - that he didn't even
know Meders had a gun until the shooting inside the store.
State next presented Arnold, who is Harris' cousin. For
the most part Arnold's testimony tracked Creel's.
Arnold testified that he had grown up with Creel and that he
had known Meders for about "a year or two" before
the shooting. Arnold told how, after the four of them spent
the afternoon of October 13 drinking, they all went to a room
at the Best Western, and later he, Creel, and Meders left
(without Harris) to go riding around. In the early morning
hours of October 14, they stopped at a Jiffy Store because
Creel was hungry and Meders wanted some cigarettes. After
Arnold parked the car, Creel and Meders both went inside the
store. The next thing Arnold heard was a gunshot, and the
next thing he saw was Creel running out of the store. Then
Arnold heard another shot, and Creel jumped in the car and
"hollered that Jimmy [Meders] had just killed that
man." Meders then jumped in the car, waved his gun
around and pointed it at Arnold and Creel, and told Arnold to
drive off and "get away from the store."
Arnold did. He drove them to the Shady Acres Trailer Park,
where he and Creel got out of the car and refused to take any
of the cash Meders had stolen. Meders got in the driver's
seat and drove off, while Arnold and Creel went into a
friend's trailer and called Harris and asked him to pick
them up. Arnold testified that Harris picked them up and they
all went to Harris' house, where he told them that they
should go to the police. Instead, the three went to sleep.
Arnold went to the police station the next morning, October
15, to give a statement.
cross-examination Arnold testified that he did not take
Meders back to his house in the hours before the shooting but
that they did stop by a bar while they were driving around.
He stated that no one in the car had "shot at a
truck" while they were driving around.
Clements, who was the manager of the Jiffy Store at the time
of the shooting, was the next witness for the State. She
testified that a couple of days before the shooting she had
recorded the serial numbers from a $5 bill and two $1 bills,
and that those three bills were put in a money clip in the
register to use as the store's "bait money."
When the bait money was removed from the register, it would
trigger a silent alarm. She said that when she went to the
store after the shooting, between $31.00 and $38.00 - which
included the $7.00 in bait money - had been taken from the
register, but she couldn't determine how many food stamps
were taken. She also testified that a receipt was left
sticking out of the register, which showed a transaction for
51 cents at 2:35 a.m. on October 14, 1987.
State then presented several witnesses who testified about
the scene of the crime, the evidence related to the crime,
and the police department's investigation of the
crime. Among them was Charles Byerley, an
investigator with the county police department, who testified
about the evidence found during the search of Meders'
house. He and two other officers found a holster containing
several rounds of .357 Magnum bullets. They also found a
dollar bill that was torn in half sitting on top of a
television in the house. Byerley testified that the torn
dollar bill had the same serial number as one of the $1 bills
from the Jiffy Store's bait money. He also stated that
after Meders was arrested later that day, he had inventoried
Meders' wallet and found $82 in cash, as well as some
food stamps. The serial numbers of a $1 bill and a $5 bill
from Meders' wallet matched the serial numbers of the
other $1 bill and the $5 bill from the bait
money. A Georgia citation for the sale of cocaine
was also found in Meders' wallet and it was admitted into
State called Jack Boyet as its last witness. Boyet was a
detective with the Glynn County Police Department at the time
of the murder. He responded to the scene at the Jiffy Store
and also went with two other officers to Meders' house
later that morning to question him. At the house Boyet told
Meders that he had some questions about a homicide at the
Jiffy Store, and Meders falsely stated that he didn't
know anything about it. Boyet then asked Meders whether he
had a gun or knife on him, and Meders admitted that he did.
The officers took a "small .22 pistol," which was
loaded and had a shell in the chamber, from the right pocket
of his jacket. They also found 17 food stamps in the left
pocket of Meders' jacket. After reading him his
Miranda rights, Boyet asked him if he had any other
firearms in the house, and Meders said he had a .357
revolver. The officers obtained that firearm (a fully loaded
Ruger Black Hawk .357 revolver) and the .22 pistol and took
Meders to the station for more questioning.
Boyet told the jury that at the police station Meders again
stated that he didn't know anything about the
robbery-murder and had not gone to the Jiffy Store. He
claimed, instead, that he had been at the Best Western and
had gone home around midnight. Boyet then informed Meders
that Harris had just given a statement to detectives that
Meders had told him that he "had blew a man's head
off for $38.00." Meders denied saying that and told
Boyet that Harris was "trying to get him" because
he thought Meders was having an affair with his wife. After
Boyet finished interviewing him, Meders was arrested.
testified that on October 16, Harris came to the police
station and said that he "had received information"
that the gun used in the shooting was under Meders'
waterbed. Boyet executed a search warrant at Meders'
house that day and found a Dan Wesson .357 Magnum revolver
"under the center of the [waterbed's]
mattress." The firearms examiner later concluded that
the revolver had fired the two bullets that killed the Jiffy
also testified that on November 14, 1988 - a year and one
month after the murder and Meders' first statement to
police, and four months before the trial - Meders asked to
talk with him again. Despite his previous statements denying
that he knew anything about the crime, Meders now told Boyet
a different story. Here's how Boyet recounted on the
witness stand Meders' new story:
He said that he first got with Bill Arnold and Greg Creel on
the afternoon of October 13th, 1987. . . . They drank beer,
smoked several joints, got high, got drunk, and they [ ] went
to a motel room where Randy Harris was [ ] with a girl. . . .
They rode around that afternoon and took him home. He was
drunk, passed out on the couch. Around 11:00 [p.m.] they came
back to his house. Bill Arnold woke him up and told him they
needed him to go with him, and to bring his gun. He told
the[m] he didn't want to go, said we need you to go, get
your gun and come with us, said he got his gun, the Dan
Wesson revolver out from under the couch, got in the car with
them. At that time they went to the Best Western Motel where
Randy and Sandra Ruggles were at. At that point [Harris] and
[Arnold] got over in the side of the room, were whispering
low voices. He couldn't understand what they were saying.
[Arnold, Creel, and Meders] then got in the Roadrunner and
left, went riding around, rode around the County. At one
point Bill Arnold took the gun, the Dan Wesson, and shot at a
truck. They shot at a . . . flower shop . . . on 303, shot a
new Chevy truck somewhere on 303. They passed a young man by
the name of Keith Bowen on Community Road. [Arnold] asked
[Meders] to shoot [Bowen], or give him a gun, he would shoot
him, and [Meders] said he got scared and told him he was
crazy, and they kept riding. Said they rode several hours
still drinking. They pulled into the Jiffy Store to get
something to eat at Marshes of Mackay. All three went in. He
said Creel went to the back, got something, put it in a
microwave oven. He stayed up by the counter, didn't go
any further because he was drunk. Said at that time Bill
Arnold pulled out the gun, shot the man, that he fell. He
shot him again, and [Meders] said he told him, you shot that
man. He said [Arnold] laughed, and said, yes, no witnesses,
get the money. Then he said he then took the money out of the
cash register. They got in the car and left. After leaving
there, they went to Shady Acres Trailer Park. . . . [Creel]
and [Arnold] got out of the car there, left him with the car,
said he left the gun with [Arnold]. He drove directly home,
did not go anywhere, and went to bed.
also told Boyet that he did not go to Harris' motel room
after the murder, that Harris had told him later that morning
that the best thing he could do is keep his mouth shut about
the shooting, and that Harris had put the gun under
Meders' mattress. Boyet testified that Meders said he had
waited more than a year to tell the police about the incident
because he was scared of what would happen if he told them.
Boyet confirmed that he had not found any evidence that
Arnold or Creel ever had the gun that killed the store clerk,
or any evidence that corroborated Meders' story about
what had happened.
counsel then cross-examined Boyet. Boyet stated that when he
questioned Creel and Arnold on October 15 about whether they
had shot at a truck as they were riding around during the
night of October 13, they both denied it. Defense counsel
then asked: "And did you have any reason to, to doubt
that they were telling you the truth?" Boyet responded:
"The only thing I had to indicate that they did do it
was, is Jimmy Meders saying that they did." He added:
"There, there is no other evidence to indicate that they
did. There, there are no ...