Meders v. Warden

• Citation: 911 F.3d 1335
• Decision Date: 04 January 2019
• Docket Number: 15-14734,Nos. 14-14178,s. 14-14178
• Parties: Jimmy Fletcher MEDERS, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

911 F.3d 1335

Jimmy Fletcher MEDERS, Petitioner-Appellant,
v.
WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee.

Nos. 14-14178
15-14734

United States Court of Appeals, Eleventh Circuit.

January 4, 2019

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James K. Jenkins, Maloy Jenkins Parker, BOULDER, CO, Andru H. Volinsky, Bernstein Shur, MANCHESTER, NH, for Petitioner - Appellant.

Sabrina Graham, Beth Attaway Burton, Attorney General's Office, ATLANTA, GA, for Respondent - Appellee.

On Petition for Rehearing by the Panel

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

ED CARNES, Chief Judge:

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.

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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

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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

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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...