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Meders v. Warden, Georgia Diagnostic Prison

United States Court of Appeals, Eleventh Circuit

January 4, 2019

JIMMY FLETCHER MEDERS, Petitioner-Appellant,

          Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 2:07-cv-00090-LGW-JEG

         On Petition for Rehearing by the Panel

          Before ED CARNES, Chief Judge, MARCUS, and NEWSOM, Circuit Judges.


         The 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 and opinion.").

         The 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.

         The 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.

         Our revised opinion follows:[1]

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 appeal.

         I. BACKGROUND

         A. Facts

         The 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.

         Around 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.

         B. The Trial

         Meders 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.

         1. The State's Witnesses

         Because 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.

         The 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 pay them."

         Harris 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.

         Harris 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.

         Creel 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.

         Creel 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.

         On 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.

         The 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."

         Which 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.

         On 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.

         Margaret 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.

         The 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.[2] 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.[3] A Georgia citation for the sale of cocaine was also found in Meders' wallet and it was admitted into evidence.

         The 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.

         Detective 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.

         Boyet 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 Store clerk.

         Boyet 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.

         Meders 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.

         Defense 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 ...

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