IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 95-60782
GEORGE GUY DERDEN, III,
Petitioner-Appellant,
versus
JAMES V. ANDERSON, SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY;
ATTORNEY GENERAL, STATE OF
MISSISSIPPI, Respondents-Appellees.
________________________________________________
Appeal from the United States District Court for the
Northern District of Mississippi
(1:95-CV-43-D-D)
________________________________________________
December 24, 1996
Before GARWOOD, DAVIS, and STEWART, Circuit Judges.*
GARWOOD, Circuit Judge:
Appellant George Derden was tried and convicted of an August
1984 attempted armed robbery in the Circuit Court of Lowndes
County, Mississippi, and sentenced to twenty years in prison. His
conviction and sentence were affirmed on direct appeal to the
Mississippi Supreme Court. Derden filed a motion for post
conviction relief, which the Mississippi Supreme Court denied.
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Derden then filed the instant petition for writ of habeas corpus in
the district court below. The magistrate judge entered a Report
and Recommendation, recommending that Derden’s petition be denied.
The district court adopted the magistrate’s recommendation as the
opinion of the court, denied Derden’s objections, and dismissed his
petition for habeas corpus relief. Derden filed a notice of appeal
and the district court on December 13, 1995, granted a certificate
of probable cause.
Facts and Proceedings
There was evidence at Derden’s trial in February 1988
reflecting the following.
On August 23, 1984, Shirley Pennington and William
Edwards——affectionately known as “Good Thing Man”——met with Derden
at his home to discuss his plan to rob the El Rancho Motel in
Columbus, Mississippi, operated by one William Hall.1 The plan
called for Pennington and Jessie James Ingram, an accomplice, to
approach Hall, who worked the front desk of the motel, and inquire
about a room for the night. Edwards and Will Sherrod, another
accomplice, would hide in the backseat of the get-away car with a
gun. Ingram would spray mace into Hall’s face, and with Hall
1
This was not Derden’s first attempt at robbing the motel.
Derden had initially approached Pennington and Edwards in February
1984 with a plan to rob the motel. The plan was for Pennington and
Edwards to check into the motel, and once inside, cut a hole in the
ceiling, go through the attic, jump down on Hall, steal the motel
safe, and take the safe back to Derden. Needless to say, their
“Mission Impossible” plan fell through.
2
temporarily blinded by the mace, the four would retrieve the motel
safe and transport it back to Derden.
The following day, the four rode in Pennington’s car to the
motel as planned.2 With Edwards and Sherrod lying in wait inside
the car, Pennington and Ingram entered the motel and asked Hall for
a room. As Hall began preparing the paperwork for the room, Ingram
sprayed him with mace. The robbery plan quickly unraveled,
however, when Hall (unfazed by the mace) grabbed his gun and
started shooting. As Pennington and Ingram fled to the car,
Sherrod began shooting into the motel at Hall. Edwards had
difficulty starting the get-away car, at which point he and Sherrod
tried to escape on foot. Pennington was finally able to start the
car and picked up her fleeing cohorts as they were running down the
highway. Although Pennington, Sherrod, and Edwards managed to
escape, Ingram was not so fortunate as he was fatally wounded. A
few days after the attempted robbery, Pennington and Edwards were
arrested in Alabama and confessed. Derden was later arrested and
charged for his part in the robbery attempt.
Pennington planned to plead guilty to the crime, and as part
of her plea bargain, she agreed to assist the government in its
prosecution of Derden for attempted armed robbery.3 The agreement
2
In preparation for the heist, Sherrod and Ingram equipped
themselves with a supply of stockings and gloves, and managed to
finance the gas for the get-away car with money they had acquired
by selling meat stolen from the Jitney Jungle.
3
The plea agreement was entered into in December 1984.
3
provided that, in exchange for Pennington’s testimony against
Derden, the government would recommend to the court that Pennington
receive a ten-year sentence on a charge of armed robbery. Sometime
after entering into the plea agreement, but before Derden’s first
trial in February 1987, the agreement was modified. According to
Pennington’s testimony at Derden’s first trial, the government
agreed to recommend that she receive an eight-year prison sentence
instead of the ten-year sentence as originally provided in the
agreement. Derden’s first trial ended in a mistrial because the
jury was deadlocked.
At Derden’s second trial in February 1988, Pennington again
testified as a key witness for the government. Derden’s attorney
once again attacked Pennington’s credibility by questioning her
about her deal with the government:
“Q: Well, what is the agreement, [Ms. Pennington], that
you have now about being sentenced for all these
robberies——
A: ——I have an agreement with the State for no more
than eight years.
Q: You have an agreement for no more than eight years?
A: Right.
Q: And how long have you had that agreement?
A: Last year. We made that agreement last year.”
On redirect, the prosector introduced a letter which set forth the
details of Pennington’s plea agreement:
“Q: Mrs. Pennington, I’m going to hand you what has
been marked now as State’s in Evidence Number Six
and direct you into——to the second page, paragraph
labeled one. If you would, read that first
sentence there.
A: ‘The State of Mississippi will recommend to the
Court that Mrs. Pennington receive a ten-year
4
sentence with the Mississippi Department of
Correction.’
Q: Okay. Now, that has been, as you understand it,
reduced to eight years; is that correct?
A: Yes, sir.
Q: Now, other than that everything else in that
particular plea bargain agreement is still in force
and effect; is that correct?
A: It is.” (Emphasis added).
This point——that Pennington would spend eight years in prison for
armed robbery——was highlighted to the jury in the prosecutor’s
closing arguments, as evidenced by his statement that “Pennington
has not been convicted of anything yet. She will be. And she will
go to the penitentiary. . . . [She] is going to the Department of
Corrections for eight years.” (Emphasis added).
Derden was convicted of attempted armed robbery and sentenced
to serve a mandatory term of twenty years in the Mississippi
Department of Corrections. Derden filed a direct appeal with the
Mississippi Supreme Court on December 5, 1988. Derden’s conviction
and sentence were affirmed by the Court in February 1991. Derden
v. State, 575 So.2d 1003 (Miss.) (unpublished opinion), cert.
denied, 112 S.Ct. 94 (1991).
On December 8, 1988, ten months after Derden’s trial and three
days after he had filed his brief with the Mississippi Supreme
Court, Pennington signed a plea agreement indicating her intent to
plead guilty to armed robbery. The agreement, however, provided
that the government would reduce the charge to simple robbery and
recommend to the court at sentencing that she not receive a
5
sentence greater than eight years.
At Pennington’s arraignment and guilty plea, the court was
informed by the government that it had agreed to reduce
Pennington’s charge from armed robbery to simple robbery, and it
recommended that she be sentenced to eight years:
“State: If your honor please, prior to doing
that, I made a mistake. . . . The
State was to move to reduce this
from attempted armed robbery to
plain robbery. That was supposed to
have been done prior to the entry of
the guilty plea. The State would so
move now to reduce this from a
charge of armed robbery to robbery.
* * *
Court: Does the State have a recommendation
in this case?
State: Yes, your honor, pursuant to the
plea bargain reached between counsel
for the defendant and the State of
Mississippi, the State would
recommend that this defendant be
sentenced to serve a term of eight
years in the Mississippi Department
of Corrections.”
The court sentenced Pennington to ten years in prison, but
suspended the ten years and sentenced her instead to five years’
probation.
Derden later learned of Pennington’s probation sentence and
filed an application in the Mississippi Supreme Court requesting
leave to file a motion for post conviction relief in the Circuit
Court of Lowndes County. Derden argued, inter alia, that
6
Pennington knew when she testified at his trial that the government
was going to reduce the charge against her from armed robbery to
simple robbery, thus allowing for the possibility of probation,
which would not otherwise have been available. Derden maintained
that because neither he nor the jury was informed of her “real
deal,” the jury could not properly assess her credibility, in
violation of Giglio v. United States, 92 S.Ct. 763 (1972). The
Court denied his application, holding that the issues were barred
from consideration by Miss. Code Ann. § 99-39-21 of the Mississippi
Uniform Post-Conviction Collateral Relief Act and, furthermore,
that Derden had failed to present a substantial showing of the
denial of a state or federal right as required by Miss. Code Ann.
§ 99-39-27. No explanation for either holding was made.
Derden, proceeding pro se, then filed the instant petition for
habeas corpus in the district court below, again arguing that
Pennington perjured herself with regards to her plea agreement.
Without conducting an evidentiary hearing, the magistrate judge
recommended that the petition for writ of habeas corpus be denied.
Derden filed his objections to the magistrate judge’s Report and
Recommendation, primarily contesting the magistrate’s failure to
address his Giglio claim. The district court adopted the
magistrate’s recommendation and denied habeas relief. Derden’s
requests for a certificate of probable cause and for leave to
appeal in forma pauperis were granted.
7
Discussion
In his appeal to this Court, Derden makes essentially two
arguments. First, he contends that he received ineffective
assistance of trial and appellate counsel.4 In support of this
argument, Derden points to several alleged deficiencies in
counsel’s representation, including, inter alia: (1) failing to
challenge the sufficiency of the evidence on his attempted armed
robbery conviction; (2) prohibiting Derden from testifying in his
own defense; (3) failing to object to “irrelevant and inflammatory”
evidence that the prosecutor presented to the jury, including
testimony that Derden purchased a .38 caliber revolver in 1980;
testimony that Derden helped make payments on automobiles purchased
by two of the people involved in the attempted robbery; testimony
referring to Derden as the “Godfather”; and testimony that Derden
had been confined in the county jail; and (4) failing to submit
proper accomplice instructions. Derden further asserts that this
Court, pursuant to Kyles v. Whitley, 115 S.Ct. 1555, 1567 (1995),
must consider the cumulative effect of all the alleged errors when
reviewing his ineffective assistance claims.
We reach the same conclusion regardless of whether we review
Derden’s ineffective assistance claims cumulatively or “item-by-
item”——Derden has not shown that he received ineffective assistance
4
Derden was represented by the same attorney at trial and on
direct appeal.
8
of trial or appellate counsel. Having extensively reviewed the
entire record and the briefs, we find no arguable merit in these
claims.
Derden’s second argument is that Pennington misled the jury
when she testified that, in exchange for her testimony against
Derden, the state agreed to recommend an eight-year prison sentence
for armed robbery when she, in fact, knew at the time that she
would receive a significantly lower sentence for the lesser crime
of simple robbery. In response, the state does not, and did not
below, in any way address the merits of this claim, but instead
simply argues (as it did below) that the claim is procedurally
barred. Similarly, neither the magistrate judge nor the district
court addressed the merits of this claim, but simply held it was
procedurally barred.
Upon review of the record, we believe Derden has at least made
a colorable prima facie showing that Pennington might not have been
completely honest to the jury when she testified about her
arrangement with the government. Pennington’s original agreement
was to plead guilty to armed robbery with the state agreeing to
recommend that she receive not more than a ten-year prison
sentence. When she testified at Derden’s second trial, however,
the state elicited her testimony that the deal had been changed,
but only to the extent that they would recommend a sentence for no
more than eight, rather than ten, years for armed robbery. By the
9
time Pennington pleaded guilty in 1989, however, it appears the
state had in fact at some prior time sweetened the deal even more,
changing the charge from armed robbery, which carries a mandatory
minimum sentence of three years, to simple robbery, which carries
no mandatory minimum sentence and, unlike armed robbery, allows for
probation.5 And, interestingly enough, probation is what she
received.
The state, for reasons unknown, has never addressed Derden’s
Giglio argument. So far as we can ascertain, the state has never
denied Derden’s allegation that when Pennington testified at
Derden’s second trial her deal with the state, as she and the
prosecutor then well knew, called for a plea to simple robbery
(which allowed for probation and carried no minimum sentence), not
armed robbery (requiring her to serve at least three years in the
penitentiary and not allowing probation) as she and the prosecution
led the jury to believe. Nor, so far as we can tell, has the state
ever argued that any such deception by Pennington and the
prosecutor was not material. The state has merely argued that this
claim is procedurally barred because, as the Mississippi Supreme
Court concluded, Derden failed to raise it on direct appeal. As
5
Armed robbery under Mississippi law carries a mandatory
minimum sentence of three years in the state penitentiary. See
Miss. Code Ann. § 97-3-79 (1994); see also Marshall v. Cabana, 835
F.2d 1101, 1102-03 (5th Cir. 1988) (per curiam); Vittitoe v. State,
556 So.2d 1062, 1063 (Miss. 1990); Malone v. State, 486 So.2d 367,
369 (Miss. 1986). There is no such mandatory minimum sentence for
simple robbery. See Miss. Code Ann. § 97-3-75 (1994).
10
Derden points out, however, (and so far as the record before us
reflects) the facts giving rise to this claim were neither known by
nor reasonably available to Derden until Pennington pleaded guilty
to simple robbery, which occurred after he was tried and convicted
and, in fact, even after he filed his direct appeal. If this is
the case——and nothing suggests it is not——Derden could not have
possibly raised his Giglio claim on direct appeal.6
Moreover, neither the Mississippi Supreme Court, the
magistrate judge, nor the district court below has addressed the
merits of Derden’s claim. Although the district court conclusorily
states otherwise, we are unable to read the magistrate judge’s
Report and Recommendation——which the district court adopted as its
own opinion——as addressing the merits of Derden’s Giglio claim.
Indeed, we doubt that the magistrate judge could have adequately
addressed this issue without the benefit of a reply on the merits
by the state and a record otherwise more fully developed.
The failure of the government to disclose to a jury material
plea-bargaining agreements or negotiations with a key witness may
deprive a defendant of constitutional due process. Giglio, 92
S.Ct. at 766 (setting aside a conviction because of nondisclosure
by the government of its promise to a testifying accomplice that he
6
We do not preclude the state from showing on remand that
Derden knew or was properly chargeable with knowledge of the
relevant facts at an earlier time when he could have taken
meaningful steps to protect his rights.
11
would not be prosecuted in return for his cooperation).7 In the
first trial, the jury deadlocked. Clearly, Pennington was the star
prosecution witness at both of Derden’s trials. The prosecution
depended significantly on her testimony, particularly her testimony
of Derden’s direct involvement in the botched robbery attempt of
the El Rancho Motel. Therefore, Pennington’s credibility was
clearly important.
It is certainly arguable that had the jury known of
Pennington’s reduced charge from armed robbery to simple
robbery——thus making her eligible for probation instead of facing
a mandatory three-year minimum sentence for armed robbery——the jury
might have given less weight to her testimony. See, e.g., United
States v. Smith, 480 F.2d 664, 668-69 (5th Cir. 1973) (reversing
conviction and remanding for a new trial where government witness
testified that he would receive a two-year prison sentence when the
agreement actually was for two years of probation). At this
juncture, however, we do not address whether Derden was actually
7
The Court further stated in Giglio that:
“when the ‘reliability of a given witness may well be
determinative of guilt or innocence,’ nondisclosure of
evidence affecting credibility falls within [the general
rule of Brady]. . . . Here the Government’s case
depended almost entirely on [one witness’s] testimony. .
. . [His] credibility as a witness was therefore an
important issue in the case, and evidence of any
understanding or agreement as to a future prosecution
would be relevant to his credibility and the jury was
entitled to know of it.” Giglio, 92 S.Ct. at 766.
12
prejudiced by the alleged nondisclosure. We hold only that on this
record the district court and magistrate judge erred by holding
that Derden’s facially nonfrivolous Giglio claim was procedurally
barred, in denying the claim on that basis alone, and in failing to
address the merits of the Giglio claim. We do not rule on the
merits of the Giglio claim; that is for the district court to do in
the first instance on the basis of an adequately developed record.
Conclusion
For the foregoing reasons, the district court’s judgment
dismissing Derden’s petition is affirmed as to all claims except
the Giglio claim; as to the Giglio claim, the judgment is vacated
and the cause is remanded for further proceedings not inconsistent
herewith.8
AFFIRMED in part; VACATED in part; CAUSE REMANDED
8
Derden’s motion to file a supplemental reply brief is
granted; his motion to supplement the record is granted only to the
extent of material filed with or tendered to the district court
prior to his notice of appeal, and is otherwise denied.
13