                                                                          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      This order and judgment is not binding precedent, except under the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.




                                         -2-
      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.




                                         -3-
       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




                                            -4-
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

                                          -5-
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.

                                               -6-
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.

                                             -7-
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.



                                            -8-
       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.




                                           -9-
       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.


                                             -10-
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)

                                            -11-
(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


                                             -12-
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


                                              -13-
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


                                            -14-
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


                                            -15-
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).

                                            -16-
