                     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opinion should not be published and is not precedent except under the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.




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