UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60551
GEORGE GUY DERDEN, III,
Petitioner-Appellee,
v.
EDWARD HARGETT; MIKE MOORE, Attorney General,
State of Mississippi,
Respondents-Appellants.
Appeal from the United States District Court
for the Northern District of Mississippi
(1:95-CV-43-D-D)
August 6, 1999
Before JONES and WIENER, Circuit Judges, and LITTLE,* District
Judge.
EDITH H. JONES, Circuit Judge:†
The State of Mississippi appeals the district court’s
grant of habeas corpus relief to petitioner George Guy Derden. We
reverse.
BACKGROUND
Derden was convicted by a Mississippi jury of attempted
armed robbery and sentenced to serve a twenty year prison sentence.
The government obtained his conviction in part by the cooperative
testimony of an accomplice, Shirley Pennington. In exchange for
her testimony against Derden, Pennington’s plea agreement called
for the state to recommend that she receive a ten year prison
sentence for armed robbery. Prior to Derden’s first trial,
however, the agreement was modified, reducing the state’s
*
District Judge of the Western District of Louisiana, sitting by
designation.
†
Pursuant to 5th Cir. 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opinion should not be published and is not precedent except under the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 5th Cir. Rule 47.5.4.
recommendation to eight years. At Derden’s second trial,1 Derden’s
counsel attacked Pennington’s credibility by questioning 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 the agreement last year.
On redirect, the prosecutor 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 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.
The prosecutor highlighted the fact that Pennington would serve
eight years during his closing arguments when he said, “Pennington
has not been convicted of anything yet. She will be. And she will
1
Derden’s first trial ended in a hung jury.
2
go to the penitentiary. . . . [She] is going to the Department of
Corrections for eight years.” The jury convicted Derden and the
Mississippi Supreme Court affirmed his conviction on appeal. See
Derden v. State, 575 So.2d 1003 (Miss. 1991) (unpublished opinion).
Ten months after Derden’s trial and while his case was
pending before the Mississippi Supreme Court, Pennington signed a
plea agreement. Although the agreement still stated that the state
would recommend an eight year sentence, it differed from the
evidence presented at Derden’s trial in one respect: it provided
that the government would reduce the charge from armed robbery to
robbery. At Pennington’s sentencing, the State, pursuant to the
plea agreement, recommended that she be sentenced to an eight year
prison term. The court, however, decided to sentence her to ten
years in prison, but suspended the prison term and sentenced her
instead to five years probation.
Upon learning of Pennington’s probation sentence, Derden
filed a post-conviction application in the Mississippi Supreme
Court arguing that Pennington knew when she testified at his trial
that the state was going to reduce the charge against her;
therefore, because the “real deal” was not disclosed, the jury
could not properly assess her credibility in violation of Giglio v.
United States. 405 U.S. 150, 92 S. Ct. 763 (1972). The Court
denied Derden’s application, holding that it was procedurally
barred because Derden did not raise the Giglio claim on direct
appeal. Derden then filed a federal habeas corpus petition, but
the district court likewise rejected the claim because of
3
procedural default. On appeal, a panel of this court reversed,
holding that Derden could not have raised his Giglio claim on
direct appeal because he did not learn of Pennington’s deal until
after he was tried, convicted, and had filed his direct appeal with
the Mississippi Supreme Court.2 Therefore, this court remanded the
case and gave the state an opportunity to show 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.”
On remand, the district court held that Derden had
established a Giglio claim and granted a conditional writ of habeas
corpus, releasing Derden unless he was retried in 120 days. The
district court, however, stayed its order pending the outcome of
this appeal. The state argues on appeal that Derden’s claim is
procedurally barred and that the district court erred in holding
that Derden established a Giglio claim.
DISCUSSION
1. Procedural Bar.
Once again, the state argues that Derden’s Giglio claim
is procedurally barred because he did not raise the issue on his
direct appeal. That issue, however, has already been resolved by
this court. The prior panel’s opinion stated that Derden’s claim
was not procedurally barred because
the facts giving rise to this claim were neither known by
2
The district court and this court also rejected Derden’s
ineffective assistance of counsel claim. Thus, the only issue remaining
on appeal is Derden’s Giglio claim.
4
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 not the case--and nothing
suggests it is not--Derden could not have possibly raised
his Giglio claim on direct appeal.
In a footnote, this court gave the state an opportunity to show 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.” The state has failed to
make the necessary showing.
The state essentially argues that Derden knew or should
have known of the deal with Pennington and is therefore
procedurally barred from bringing his Giglio claim because the
letter memorializing Pennington’s plea agreement was introduced at
trial and because Pennington pleaded guilty three days after Derden
filed his direct appeal. These arguments, however, were presented
to and rejected by the prior Fifth Circuit panel; thus, because the
state has failed to introduce any new evidence or argument
indicating that Derden knew or should have known of the relevant
facts and could have protected himself, the law of the case
doctrine prohibits our reexamination of the issue. See Free v.
Abbott Labs., 164 F.3d 270, 272-73 (5th Cir. 1999).
2. Giglio claim.
The state next asserts that the district court erred in
holding that Derden’s right to due process was violated because the
state did not disclose plea agreement information that it was
required to produce under Giglio. We review the district court’s
factual findings for clear error and its legal determinations de
5
novo. See Creel, 162 F.3d 385, 391 (5th Cir. 1998), cert. denied,
__ U.S. __, 119 S. Ct. 2027 (1999).
Under Brady v. Maryland, the state has a duty to disclose
evidence favorable to the accused that is material to guilt or
punishment. See 373 U.S. 83, 86-87, 83 S. Ct. 1194, 1196-97
(1963). Giglio made clear that the Brady rule applies to the
nondisclosure of evidence affecting the credibility of a witness if
the reliability of the witness may be determinative of guilt or
innocence. See 405 U.S. at 154-55, 92 S. Ct. at 766. A promise of
leniency made to a key witness in return for his testimony is
impeachment evidence to which a defendant is entitled. See id.
In order to establish a Giglio claim, a habeas petitioner
must show that 1) the state withheld evidence; 2) the evidence was
favorable; and, 3) the evidence was material to the defense. See
Little v. Johnson, 162 F.3d 855, 861 (5th Cir. 1998), cert. denied,
__ U.S. __, 119 S. Ct. 1768 (1999). “‘[E]vidence is material only
if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.’” Id. (quoting United States v. Bagley, 473 U.S.
667, 682, 105 S. Ct. 3375, 3383 (1985)). A petitioner demonstrates
“reasonable probability” of a different result when the state’s
non-disclosure “undermines confidence in the outcome of the trial.”
Bagley, 473 U.S. at 678, 105 S. Ct. at 3381. “[W]hen the testimony
of a witness who might have been impeached by the undisclosed
evidence is strongly corroborated by additional evidence supporting
a guilty verdict, the undisclosed evidence generally is not found
6
to be material . . . .” Wilson v. Whitley, 28 F.3d 433, 439 (5th
Cir. 1994). “Similarly, when the undisclosed evidence is merely
cumulative of other evidence, no Brady violation occurs.” Spence
v. Johnson, 80 F.3d 989, 995 (5th Cir. 1996).
In this case, we find that Pennington’s trial testimony
was not material because disclosure of the reduced charge in her
plea agreement would not have made a different result reasonably
probable. Pennington’s testimony was corroborated by other
evidence presented at Derden’s trial that supports his guilty
verdict. See id. Willie Sherrod, an accomplice to the attempted
robbery, complemented Pennington’s testimony and provided
substantial independent evidence of Derden’s guilt. See Creel, 162
F.3d at 392. Although Derden did not actually carry out the
attempted robbery, both Pennington and Sherrod testified that
Derden planned the robbery. Sherrod, who was an employee of
Derden’s, testified that Derden personally solicited his help, set
the date and time for the robbery, and gave him a pistol to use.
Both Pennington and Sherrod testified that Derden supplied the mace
used during the robbery, and both gave similar testimony about
various meetings with Derden before and after the attempted
robbery.3 In addition, the two witnesses gave nearly identical
3
Both Pennington and Sherrod testified that after Derden solicited
Sherrod and William Edwards, they met at Sherrod’s residence to plan the
robbery; both testified that after the attempted robbery was over, they
drove to Derden’s residence; both testified that Derden gave Edwards a
shirt to cover his gunshot wounds; both testified that Derden told them
to leave in case they were followed; and, both were present at Derden’s
residence days later when Derden informed them that their accomplice,
James Ingram, was dead.
7
testimony regarding events surrounding the actual robbery.4
Sherrod’s trial testimony alone provides substantial independent
evidence of Derden’s guilt. Because Pennington’s testimony is
strongly corroborated by another key witness, the fact that she
might have been further impeached by an undisclosed aspect of her
plea agreement is not material. See Spence, 80 F.3d at 995;
Wilson, 28 F.3d at 439.
Furthermore, the undisclosed evidence is immaterial
because it is cumulative of other evidence impeaching Pennington.
See Spence, 80 F.3d at 995. During Pennington’s cross-examination,
Derden’s counsel attempted to discredit her by accusing her of
withholding a secret agreement with the state in which she would
not serve any prison time--an accusation she emphatically denied.
On re-direct examination, the following colloquy occurred:
Q: Now, Mrs.--Mrs. Pennington, you have been read or--and
read some of the answers to your--to your testimony in
a previous trial where you were asked about an agreement
that you have with the State that you will not go to the
penitentiary at all. What agreement like that do you
have, Mrs. Pennington?
A: I--I really don’t understand. My agreement with the
State is for me to testify and tell the truth, the whole
truth, and nothing but the truth, and get no more than
eight years . . . in a Mississippi Correction Center.
Had Derden known that the state was actually going to charge
Pennington with robbery instead of armed robbery, his attempt to
4
For instance, both testified that they drove to the motel twice
before actually attempting to rob it; both testified that Sherrod and
Edwards were hiding in the rear seat of Pennington’s car; both testified
that when the motel owner began shooting that Sherrod returned fire;
and, both testified that after the robbery, Pennington picked up Sherrod
and Edwards on the highway as they were fleeing the scene.
8
impeach her would have been cumulative. His counsel had already
spent much effort in attacking her eight year sentence. Derden’s
goal was to show that her lenient sentence--not her formal charge--
should give the jury reason to discredit her testimony. Thus, the
fact that the plea agreement erroneously listed her actual charge
is not material evidence that would have changed the outcome of the
trial.
CONCLUSION
Because the state has offered no new evidence or
arguments showing that Derden knew or should have known of the
state’s deal with Pennington, we will not disrupt the prior panel’s
conclusion that Derden’s claim was not procedurally barred. We
find, however, that the district court erred in concluding that
Derden has made a Giglio claim. The state did not violate Giglio
when it failed to disclose the reduced charge that Pennington plead
guilt to because it was not material. There was not a reasonable
probability that, had the actual charge been disclosed, the result
of the trial would have been different. See Little, 162 F.3d at
861. Furthermore, Pennington’s testimony was strongly corroborated
by independent evidence and the undisclosed evidence was cumulative
of other impeachment evidence. See Spence, 80 F.3d at 995. We
therefore reverse the judgment of the district court.
REVERSED.
9