Derden v. McNeel
| Decision Date | 16 August 1991 |
| Docket Number | No. 90-1230,90-1230 |
| Citation | 938 F.2d 605 |
| Parties | George Guy DERDEN, III, Petitioner-Appellant, v. Sheriff Sammie McNEEL and Attorney General--State of Mississippi, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Leslie Joyner Bobo, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, Miss. (Court-appointed), for petitioner-appellant.
Charlene R. Pierce, Sp. Asst. Atty. Gen., Marvin L. White, Asst. Atty. Gen., and Mike Moore, Atty. Gen., Jackson, Miss., for respondents-appellees.
Appeal from the United States District Court for the Northern District of Mississippi.
Before REYNALDO G. GARZA, POLITZ and JONES, Circuit Judges.
After exhaustion in the state courts, petitioner appealed for habeas relief to the federal courts. The magistrate recommended relief in his findings and recommendations. The district judge, however, denied relief. We reverse the judgment of the district court and grant the writ. The State of Mississippi is given ninety days in which to retry petitioner or set him free.
This cause comes before us on the petition of George Guy Derden, III for a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Petitioner was tried and convicted of burglary in the Circuit Court of Clay County, Mississippi and was sentenced to a term of seven years. 522 So.2d 752. Petitioner is presently incarcerated at the Mississippi State Penitentiary at Parchman, Mississippi.
Derden filed the present action pursuant to 28 U.S.C. Sec. 2254 alleging as error: (1) that he was denied a fair tribunal; (2) that a directed verdict should have been entered or alternatively, that the verdict was against the overwhelming weight of the evidence; (3) that the sentence imposed was excessive; (4) that the State withheld evidence; and (5) that he was denied effective assistance of counsel.
On February 16, 1990, a United States Magistrate recommended that the petition for writ of habeas corpus be granted. On March 19, 1990, a United States District Judge adopted the Magistrate's Report and Recommendation in part and overruled the recommendation in part. Habeas relief was denied. Derden now appeals from the district court order.
The burglary at issue occurred on February 10, 1983. The State's evidence consisted of the testimony of three persons who admitted taking part in the burglary, Willie Sherrod, Jay Posey and Tommy Turner. Sherrod had committed probably nine or ten armed robberies but was promised that Each confessed burglar testified the burglary had been planned by Ricky Forrestor, who was not charged. Posey and Turner testified that Sherrod and Derden, without prior notice, arrived at Turner's apartment in West Point on February 9, 1986, in Derden's van. Sherrod entered the apartment and told Posey and Turner "it was time." Posey and Turner admitted they had not gotten a good look at the person driving the van (allegedly Derden), nor had they exchanged more than a few words with him.
he would receive a ten year sentence on all of the charges. Turner was promised a suspended sentence. Posey was promised a non-adjudication of guilt.
The three burglars testified Derden, Derden's girlfriend, Pam Smith, Sherrod, Posey, and Turner drove to Pheba, Mississippi, and broke into Wade's Grocery and removed a safe. As they were in the process of carrying the safe to the van, they were frightened off by an approaching vehicle. Turner, Derden and Smith allegedly left and drove to Houston (Mississippi) in the van, leaving Posey and Sherrod stranded. Posey and Sherrod then walked to a nearby farmhouse and caught a ride back to West Point.
The burglars testified the burglary had occurred between 12:00 a.m. and 1:00 a.m. Turner testified that following the burglary, he, Derden, and Smith drove the van back to Houston, taking back roads, and then drove the van from Houston back to West Point, where Derden let Turner off. Turner testified, as did the other burglars, he arrived back at his apartment in West Point before Posey and Sherrod.
The State also called two witnesses who had chased the burglars away from Wade's Grocery. Steve McKee and Jerry Thompson testified they interrupted the burglary and had chased burglars from the scene. They were unable to catch them and the last time McKee and Thompson saw the burglars, they were "headed toward Starkville." These young men called the deputy sheriff at 1:00 a.m. on the morning of the burglary to report it.
Neal Blansett and his son, David Blansett, testified they were the farmers whom Posey and Sherrod had approached requesting a ride. They both testified Sherrod and Posey arrived at their home about 1:30 a.m. According to David Blansett, he, Posey and Sherrod arrived back in West Point at approximately 2:00 a.m. Blansett knew this time was correct because he had looked at the clock when he arrived back at Pheba and it was about 2:30 a.m. The trip from West Point to Pheba takes about thirty minutes driving time.
In order to check Turner's testimony, Sheriff McNeel attempted to have Turner duplicate the route from the scene of the burglary through Houston and back to West Point. According to McNeel, the route would take a driving time of two hours and twenty-four minutes. He added fifty minutes of non-driving time based upon Turner's testimony they had stopped Derden's van for that length of time to fill up with gas and to fix a defective tail light. Sheriff McNeel calculated the total time consumed in going from the burglary scene to Houston and back to West Point at three hours and fourteen minutes. Sheriff McNeel further testified each of the burglars told him that Posey and Sherrod arrived back at West Point at approximately 2:00 a.m. and that Turner was back in West Point before they were.
Derden contends the testimony of the State's witnesses is inconsistent. All of the testimony established the burglary occurred at approximately 12:30 a.m. According to the investigation conducted by Sheriff McNeel, however, it would have taken at least three hours and fourteen minutes to make the trip from the burglary scene to Houston and back to West Point. In spite of this fact, each of the three burglars told Sheriff McNeel that Turner had arrived back in West Point before Posey and Sherrod, who arrived around 2:00 a.m.
In his defense, Derden testified on the date of the burglary, Sherrod, an employee at Derden's carpet store, approached Derden about borrowing his van. Derden agreed to meet Sherrod in West Point at Derden called three witnesses to corroborate his testimony that Sherrod had borrowed his van on the date of the burglary. Pam Smith (Derden's girlfriend) testified she had been with Derden when Sherrod asked to borrow the van, had been present when Derden swapped vehicles with Sherrod and had gone with Derden to Houston to measure homes on the night in question. Tim Smith and Heath Russ both testified they were present and heard Sherrod ask Derden if he could borrow the van on the night of the burglary.
the Apollo Club to swap vehicles with him. The swap was made at the Apollo Club and Derden and Smith travelled in Sherrod's car to Houston to measure homes for carpet installation. Derden asked a policeman for directions in Houston and then purchased gas for Sherrod's car. Derden produced the gas ticket where the gas had been purchased but could not recall the location of the houses he measured for carpet. The policeman recalled having seen Derden's face but could not recall where.
The jury found Derden guilty of the burglary and the judge sentenced him to seven years. Sherrod, Posey and Forrestor were not indicted for burglary and Turner received a five-year suspended sentence with five-years probation.
Federal courts review habeas petitions for a "constitutional infraction of the defendant's due process rights which would render the trial as a whole fundamentally unfair." Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir.1988) (citation and quotation omitted). "The test applied to determine whether a trial error makes a trial fundamentally unfair is whether there is a reasonable probability that the verdict might have been different had the trial been properly conducted." Kirkpatrick v. Blackburn, 777 F.2d 272, 278-79 (5th Cir.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986).
Although some would say we are playing Captain Cook 1 by sailing uncharted waters with the use of a cumulative error analysis in a habeas case, we disagree. The United States Constitution sets a floor which the state may not go below. Consequently, the inquiry is whether this line was crossed. Our circuit has never before recognized cumulative error analysis in the habeas context. We have, however, recognized cumulative error analysis in a direct appeal. See United States v. Birdsell, 775 F.2d 645, 654 (5th Cir.1985), cert. denied, 476 U.S. 1119, 106 S.Ct. 1979, 90 L.Ed.2d 662 (1986); United States v. Webster, 750 F.2d 307, 336 (5th Cir.1984), cert. denied, sub nom. Buhajla v. United States, 471 U.S. 1106, 105 S.Ct. 2340, 2341, 85 L.Ed.2d 855, 856 (1985); United States v. Canales, 744 F.2d 413, 430-31 (5th Cir.1984); United States v. Cochran, 697 F.2d 600, 608 (5th Cir.1983). We now recognize cumulative error analysis in a habeas case.
Nothing in our previous cases precludes us from taking this route. Mullen v. Blackburn, 808 F.2d 1143 (5th Cir.1987), did not reject a cumulative error analysis in a habeas corpus proceeding. That case merely stated all of petitioner-Mullen's claims were meritless. Id. at 1147. Therefore, he had nothing to cumulate. This is not the situation in the case at bar.
How do we perform a cumulative error analysis in a habeas appeal? There is no set...
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