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.

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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* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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,

(Miss.) (unpublished opinion), cert.

denied,

(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,

(1972). The

Court denied his application, holding that the issues were barred

from consideration by

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

. 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,

(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

(1994); see also Marshall v. Cabana,

(5th Cir. 1988) (per curiam); Vittitoe v. State,

(Miss. 1990); Malone v. State,

(Miss. 1986). There is no such mandatory minimum sentence for simple robbery. See

(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,

(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,

(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,

.

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.

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