Metoyer v. Scott

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 25 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WADRESS HUBERT METOYER,
JR.,
Petitioner - Appellant,
No. 02-5155
v. (D.C. No. 00-CV-69-K)
(N.D. Oklahoma)
H.N. “SONNY” SCOTT,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before KELLY , ANDERSON , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Wadress Hubert Metoyer, Jr., was convicted of first-degree
murder in an Oklahoma district court and sentenced to life imprisonment and a
fine. He now appeals the denial of federal habeas corpus relief, asserting
ineffective assistance of counsel and denial of speedy trial and due process rights.
Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(c), we affirm.
According to the testimony presented at trial, on the evening of July 23,
1982, Mr. Metoyer, Larry Gamble, Mr. Gamble’s girlfriend Wanda Chaney and
Dr. Ron Wall were at Mr. Gamble’s apartment. Dr. Wall frequented the Gamble
apartment in order to purchase drugs. That evening, Mr. Gamble became upset
when he discovered some of his cocaine was missing. Initially, he accused
Ms. Chaney of taking the drugs and began beating her. Later, he suspected
Dr. Wall. Dr. Wall, Mr. Gamble and Mr. Metoyer engaged in a heated discussion
about the drugs. While Mr. Gamble was in the bathroom, Mr. Metoyer shot
Dr. Wall because Dr. Wall “wouldn’t come clean.” R., Doc. 9, pt. I, Trial Tr. at
44; id. pt. II at 339. Mr. Gamble and Mr. Metoyer rolled Dr. Wall’s body in a
carpet and put the body in the trunk of Dr. Wall’s car. Mr. Metoyer, in Dr. Wall’s
car, and Mr. Gamble and Ms. Chaney, in Mr. Gamble’s car, drove to a
water-filled strip pit about an hour away. There, the two men pushed Dr. Wall’s
car into the strip pit and watched it submerge.
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After the murder, Mr. Gamble threatened to kill Ms. Chaney if she told
anyone what had happened. Later, she broke up with him and moved to Georgia,
but continued to have some communication with him.
Dr. Wall’s disappearance was treated as a missing person case until 1986,
when the police received a tip from an informant that Dr. Wall had been killed.
In 1988, the police located Ms. Chaney in Georgia and interviewed her there.
Based on the information received from her, the police searched several strip pits,
but found nothing. In 1990, they again unsuccessfully explored several strip pits.
Also, that year, Mr. Metoyer and Mr. Gamble were charged with murder and
accessory to murder, respectively, of Dr. Wall. The charges were dismissed after
Ms. Chaney could not be found and the statute of limitations had run on the
accessory charge against Mr. Gamble.
In 1995, Mr. Gamble, who then was in custody on a federal charge of
possession of cocaine with intent to distribute, agreed to cooperate and led police
to the strip pit. After the car was removed from the strip pit and the trunk was
opened, the police found human bones rolled in a carpet. A sock was recovered
from around the mouth area of the skull; underwear was around the torso bones;
the hands were tied behind the back; and a bullet was found in the skull. Also in
the trunk were a pair of tennis shoes and a jogging suit.
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Mr. Metoyer again was charged with Dr. Wall’s death. Fifteen months
later, a jury found him guilty of first degree murder. In unpublished decisions,
the Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction, and,
later, the state district court’s denial of post-conviction relief. Mr. Metoyer then
unsuccessfully sought federal habeas corpus relief. Although the federal district
court denied a certificate of appealability (COA), this court granted COA on his
ineffective assistance of counsel, speedy trial and due process issues.
Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), which applies to this appeal, see Williams v. Taylor , 529 U.S. 362, 402
(2000), our standard of review depends upon whether the state courts addressed
the merits of a particular claim for relief. If so, Mr. Metoyer is entitled to habeas
relief if the decision “was contrary to, or involved an unreasonable application of,
clearly established” Supreme Court precedent, 28 U.S.C. § 2254(d)(1), or “was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” id. § 2254(d)(2). Federal courts
presume the state court’s factual findings are correct, unless rebutted by clear and
convincing evidence. Id. § 2254(e)(1). If the state courts did not decide a claim
on its merits, and the claim is not procedurally barred, this court reviews the
district court’s legal conclusions de novo and its factual findings, if any, for clear
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error. McCracken v. Gibson , 268 F.3d 970, 975 (10th Cir. 2001), cert. denied ,
123 S. Ct. 165 (2002).
I.
Mr. Metoyer first argues that he was denied constitutionally effective
assistance of trial and appellate counsel. He contends trial counsel failed to use
available evidence, failed to adequately investigate his claim of innocence, failed
to engage in meaningful cross-examination and failed to move to disqualify the
District Attorney’s Office on the grounds of bias and partiality. He contends
appellate counsel was ineffective for failing to raise these ineffective assistance
of trial counsel claims. Also, Mr. Metoyer asserts the federal district court erred
in denying him an evidentiary hearing.
Mr. Metoyer raised ineffective assistance of trial counsel claims for the
first time in his application for post-conviction relief. The OCCA deemed the
claims waived because they could have been brought on direct appeal. Metoyer v.
State , No. PC 99-1458, Order at 2-3 (Okla. Crim. App. Jan. 7, 2000)
(unpublished). This procedural bar will be adequate if (1) trial and appellate
counsel differ and (2) the claim can be resolved solely on consideration of the
trial record. English v. Cody , 146 F.3d 1257, 1264 (10th Cir. 1998). But see
generally Massaro v. United States , 123 S. Ct. 1690, 1694-96 (2003) (holding
ineffective-trial-assistance claim may be brought in 28 U.S.C. § 2255 proceeding
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regardless of whether claim could have been raised on direct appeal). Here,
although trial and appellate counsel were both employed by the Tulsa County
Public Defender’s Office, the federal district court decided Mr. Metoyer’s
ineffective assistance of trial counsel claims were procedurally barred because he
had the opportunity to consult with separate counsel on appeal and the claims
could be decided on the record. 1
Instead of deciding whether Mr. Metoyer
actually had different trial and appellate counsel and whether his claims could be
resolved on the trial record, we address the merits of the claims because it is
easier and more succinct to do so. See Romero v. Furlong , 215 F.3d 1107, 1111
(10th Cir. 2000). In doing so, we review de novo . See McCracken , 268 F.3d at
975.
Ineffective assistance of counsel claims are governed by the standards set
forth in Strickland v. Washington , 466 U.S. 668 (1984). Wiggins v. Smith ,
123 S. Ct. 2527, 2535 (2003). A petitioner must show both that counsel’s
performance was deficient and that the deficient performance prejudiced the
petitioner’s defense. Id. (citing Strickland , 466 U.S. at 687). A petitioner
demonstrates deficient performance by showing counsel’s representation “fell
below an objective standard of reasonableness.” Strickland , 466 U.S. at 688. To
1
The federal district court also decided that, even if the claims were not
procedurally barred, they would be rejected on their merits.
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establish prejudice, a petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.
Mr. Metoyer contends that although he told his trial counsel that he was
innocent and that he was not present at the time of Dr. Wall’s murder, counsel
failed to investigate and present evidence of his innocence. Mr. Metoyer asserts
counsel’s incorrect trial strategy suggested he was involved in the murder along
with Mr. Gamble and Ms. Chaney. 2
Rather, he contends counsel should have
requested an expert to examine the bullet taken from Dr. Wall’s body, rather than
accept the State’s theory that the bullet came from a hand gun in Mr. Metoyer’s
possession, since both Mr. Gamble and Ms. Chaney carried guns. He also argues
counsel should have investigated and presented evidence that the murder took
place in Dr. Wall’s, not Mr. Gamble’s, apartment, and that Mr. Gamble and
Dr. Wall were involved in prescription drug fraud. Mr. Metoyer further asserts
counsel should have called witnesses who could have testified that Mr. Gamble
had told them that he killed Dr. Wall. Finally, counsel should have interviewed
2
Counsel argued that due to his size, Mr. Metoyer, while holding a gun,
would not have had the ability to subdue, gag and tie Dr. Wall alone. Further she
contended Mr. Gamble was involved in the murder because Dr. Wall was shot at
Mr. Gamble’s apartment in an argument over Mr. Gamble’s drugs and with the
gun Mr. Gamble gave Mr. Metoyer. In addition, Mr. Gamble decided how to
dispose of the body, where to obtain the carpet and how to get to the strip pit.
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Richard Jefferson, who allegedly overheard Mr. Gamble tell Ms. Chaney that he
would kill her like he had killed another.
A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because
of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial
strategy.
Strickland , 466 U.S. at 689 (internal quotation and citation omitted); see also
Bullock v. Carver , 297 F.3d 1036, 1046 (10th Cir. 2002), cert. denied , 123 S. Ct.
703 (2002). It is settled that “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland , 466 U.S. at 691.
Mr. Metoyer has failed to meet his burden of proving counsel’s
investigations were unreasonable and her strategy was unreasonable. Nothing in
this record, even as supplemented in the federal district court, proves
Mr. Metoyer’s actual innocence. Rather, based on the record before us, we are
left with no conclusion other than that counsel rejected a strategy asserting
Mr. Metoyer’s innocence and reasonably pursued and asserted a strategy that
Mr. Metoyer had not acted alone.
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Counsel was aware of the informant’s statement that Mr. Gamble had
confessed to the informant that Mr. Gamble had killed Dr. Wall. See R., Doc. 9,
pt. I, Tr. of Oct. 7 & 8, 1996 Hr’g at 22 (counsel called witness who testified that
another officer told him that informant said Mr. Gamble shot and killed Dr. Wall
during drug deal). Generally, trial counsel has discretion to decide whether to
call particular witnesses. See Jackson v. Shanks , 143 F.3d 1313, 1320 (10th Cir.
1998). Under the circumstances of this case, we cannot conclude that counsel
abused her discretion in failing to call certain witnesses.
Mr. Metoyer asserts counsel should have presented evidence that
Ms. Chaney lied when she testified she had witnessed Mr. Metoyer kill Dr. Wall.
Ms. Chaney did give differing stories to police and some differing testimony
under oath. Mr. Metoyer’s trial counsel, however, rigorously and extensively
both questioned her about these discrepancies during cross-examination and
challenged her credibility.
Mr. Metoyer argues his trial counsel should have moved to disqualify the
district attorney’s office on bias and partiality grounds because that office failed
to identify, investigate, evaluate, develop or present evidence favorable to his
innocence. Because Mr. Metoyer’s argument is conclusory and unsupported, we
cannot conclude counsel was ineffective for failing to assert bias.
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This is not a case where counsel totally failed to investigate. Rather, trial
counsel was prepared at trial; she called several witnesses and thoroughly
examined Ms. Chaney and Mr. Gamble. Considering her performance throughout
the trial, we conclude it did not “f[a]ll below an objective standard of
reasonableness,” measured “under prevailing professional norms.” Strickland ,
466 U.S. at 688, 690. Having determined that counsel’s performance was not
deficient, we need not address whether Mr. Metoyer was prejudiced by counsel’s
performance. See id. at 697 (permitting court to dispose of claim on whichever
prong is easier to resolve).
Mr. Metoyer next argues his appellate counsel was ineffective for failing to
raise ineffective assistance of trial counsel claims on direct appeal. Ineffective
assistance of appellate counsel claims are also governed by Strickland . Smith v.
Robbins , 528 U.S. 259, 285 (2000). On post-conviction review, the OCCA
rejected the ineffective assistance of appellate counsel argument, applying
Strickland , but as further restricted by Lockhart v. Fretwell , 506 U.S. 364 (1993).
Metoyer , No. PC 99-1458, Order at 3-4. The OCCA’s application of this more
onerous standard was contrary to the Supreme Court’s clearly established
precedent in Strickland . See Williams , 529 U.S. at 391-95. Because the OCCA
applied inapplicable law, we review Mr. Metoyer’s claims of ineffective
assistance of appellate counsel de novo . See McCracken , 268 F.3d at 975.
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Because he cannot show ineffective assistance of trial counsel, it therefore
follows that he cannot show ineffective assistance of appellate counsel.
Finally, we agree with the federal district court that Mr. Metoyer is not
entitled to an evidentiary hearing. We can resolve the ineffective-assistance
claims on their merits, based solely on the record before us. See, e.g. , Torres v.
Mullin , 317 F.3d 1145, 1161 (10th Cir. 2003).
II.
Mr. Metoyer argues he was denied his right to a speedy trial and to due
process due to the over fourteen-year delay between the July 23, 1982 murder and
the trial commencing on October 10, 1996. An indictment charging murder was
first filed against Mr. Metoyer on April 25, 1990. He moved to dismiss the
indictment on speedy trial grounds. On December 3, 1990, the trial court granted
the State’s motion to dismiss the indictment. On July 21, 1995, a second
indictment was filed against Mr. Metoyer, after Mr. Gamble decided to cooperate
with the investigation. Mr. Metoyer again moved to dismiss, asserting due
process and speedy trial violations. The trial court denied the motion after
holding an evidentiary hearing. See R., Doc. 9, pt. I, Tr. of Oct. 7-8, 1996 Hr’g at
96-97. In its direct appeal decision and order denying rehearing, the OCCA
rejected the speedy trial and due process claims on their merits. Metoyer v. State ,
No. F-96-1573, Summary Opinion at 2 (Okla. Crim. App. July 8, 1998)
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(unpublished); Metoyer v. State , No. F-96-1573, Order Denying Rehearing at 1-2
(Okla. Crim. App. Aug. 25, 1998).
We agree with Mr. Metoyer’s assertion that his speedy-trial right attached
on April 25, 1990, when he was first charged with murder. See United States v.
Marion , 404 U.S. 307, 313 (1971). That right, however, did not continue to apply
after the 1990 charge was dropped. See United States v. MacDonald , 456 U.S. 1,
7 (1982). Thus, as the OCCA decided, the relevant period for a possible
speedy-trial violation was the fifteen-month delay between the second indictment
filed on July 21, 1995 and the trial held in October of 1996. See Metoyer ,
No. F-96-1573, Summary Opinion at 2.
Four relevant factors to consider in assessing a speedy-trial violation
include the length of the delay, the reason for the delay, the petitioner’s assertion
of his speedy-trial rights and the prejudice to the petitioner. See Barker v. Wingo ,
407 U.S. 514, 530 (1972). For purposes of this case, we assume presumptive
prejudice for the fifteen-month delay. See Castro v. Ward , 138 F.3d 810, 819,
820 (10th Cir. 1998) (citing, among other cases, Doggett v. United States ,
505 U.S. 647, 652 n.1 (1992)); see also Barker , 407 U.S. at 530 (“Until there is
some delay which is presumptively prejudicial, there is no necessity for inquiry
into the other factors that go into the balance.”); Perez v. Sullivan , 793 F.2d 249,
255 (10th Cir. 1986) (determining delay of fifteen months from defendant’s guilty
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plea until sentencing was sufficiently long to provoke inquiry into remaining three
Barker factors).
The remaining Barker factors suggest Mr. Metoyer’s speedy trial rights
were not violated. Nothing indicates the State deliberately attempted to delay the
trial, hamper the defense or gain a tactical advantage. See Perez , 793 F.2d at 255
(citing Barker , 407 U.S. at 531 n.32). Rather, the State requested only one
continuance, in order for the autopsy report to be completed. Although
Mr. Metoyer asserted his speedy-trial right, he has failed to prove prejudice due to
the delay. See Barker , 407 U.S. at 532 (assessing prejudice in light of three
interests speedy-trial right was designed to protect: (1) “to prevent oppressive
pretrial incarceration;” (2) “to minimize anxiety and concern of the accused;” and
(3) “to limit the possibility that the defense will be impaired”). “[His s]peculative
allegations of injury are unpersuasive.” Perez , 793 F.2d at 257. Balancing these
four factors, it is clear Mr. Metoyer’s right to a speedy trial was not violated. See
Barker , 407 U.S. at 533. The OCCA’s determination that there was no
speedy-trial violation is not unreasonable. See 28 U.S.C. § 2254(d); Metoyer ,
No. F-96-1573, Summary Opinion at 2.
The next question is whether the fourteen-year delay between the 1982
murder and the 1996 trial violated Mr. Metoyer’s due process rights. See
Doggett , 505 U.S. at 655 n.2 (observing defendant “may invoke due process to
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challenge delay both before and after official accusation”). To prove a due
process violation, Mr. Metoyer must show that pre-indictment delay prejudiced
his right to a fair trial and that the State intentionally used delay to gain a tactical
advantage over him. See Marion , 404 U.S. at 324-325; see also United States v.
Lovasco , 431 U.S. 783, 790 (1977).
Mr. Metoyer contends the delay, along with the fact that he was in custody
or on parole between 1983 and 1995, hampered his ability to find witnesses and
evidence and to reconstruct the events on the day of the murder. Faded memories,
inaccessible witnesses and lost evidence alone, however, are insufficient to prove
he did not receive a fair trial. See Marion , 404 U.S. at 326. Mr. Metoyer also
asserts prejudice because both of his alibi witnesses, who allegedly could prove
his innocence, had died before his 1996 trial. His counsel, however, did not call
one of those persons, Mr. Metoyer’s mother, as a witness at the 1990 preliminary
hearing, even though she was still living. And he does not establish that either
possible witness would have testified at trial or that their testimony would have
been helpful. See United States v. Pino , 708 F.2d 523, 528 (10th Cir. 1983).
Mr. Metoyer also argues he suffered prejudice because he could have
served his sentences concurrently. He, however, does not have such a right. See
United States v. Fuzer , 18 F.3d 517, 520 (7th Cir. 1994) (deciding defendant
failed to show actual and substantial prejudice because court was unaware of case
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law and defendant did not provide any suggesting he had right to serve state and
federal sentences concurrently). Thus, Mr. Metoyer failed to show prejudice due
to the delay.
Even if we were to assume Mr. Metoyer could prove prejudice, however,
the record does not establish that the State used delay to obtain a tactical
advantage over him. Rather, the record shows the State offered a credible
explanation for the delay. The police did not even consider Dr. Wall’s
disappearance a murder until 1986. In 1986 and 1989, Mr. Gamble refused to
cooperate, even though he admitted to the authorities that he knew where
Dr. Wall’s body was located and helped dispose of the body. See R., Doc. 9, pt. I,
Tr. of Oct. 7-8, 1996 Hr’g at 12, 41. The State had dismissed the 1990 charge
because Dr. Wall’s body had not been found and because Ms. Chaney could not
be located. Although the police attempted to find Dr. Wall’s body in 1986, 1988
and 1990, they were unable to do so until 1995, when Mr. Gamble, who was
facing federal drug charges, decided to cooperate with authorities. Thus, the
delay was caused by the State’s legitimate desire to present a stronger case. See
Pino , 708 F.2d at 528-29 (recognizing that uncertainty as to strength of
prosecutor’s case is legitimate reason for delay in obtaining indictment); see also
Lovasco , 431 U.S. at 795 (deciding prosecutor abides by fairness standards by
refusing to seek indictment until he is satisfied he should prosecute and will be
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able to establish guilt); United States v. Lebron-Gonzalez , 816 F.2d 823, 831 (1st
Cir. 1987) (holding in case where key witness cooperated only after his arrest,
that “even though the prosecution has probable cause, it is under no duty to
initiate criminal proceedings until it is satisfied that it can establish guilt beyond a
reasonable doubt”). We also reject Mr. Metoyer’s assertion that the State gained
a tactical advantage because no law enforcement officer ever interviewed him,
and instead only talked to Mr. Gamble and Ms. Chaney.
Because Mr. Metoyer’s argument is deficient in both aspects necessary to
establish a due process violation, we conclude the OCCA’s decision that there
was no due process violation was not unreasonable. See 28 U.S.C. § 2254(d);
Metoyer , No. F-96-1573, Order Denying Rehearing at 1-2. 3
The judgment of the district court is AFFIRMED. The mandate shall issue
forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
3
We do not consider Mr. Metoyer’s conclusory argument raised for the first
time in his reply brief in this court that he was denied his right to be co-counsel at
his trial and that the prosecution unfairly prejudiced his trial by bolstering
Ms. Chaney’s credibility. See Stump v. Gates , 211 F.3d 527, 533 (10th Cir.
2000).
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