Hentz v. Hargett, 94-60404
| Decision Date | 08 January 1996 |
| Docket Number | No. 94-60404,94-60404 |
| Citation | 71 F.3d 1169 |
| Parties | Larry Shelton HENTZ, Petitioner-Appellant, v. Edward HARGETT, Superintendent, Mississippi State Penitentiary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stephen L. Henning, Bailey & Henning, Batesville, MS, for appellant.
Marvin L. White, Jr., Mike Moore, Atty. Gen., Jackson, MS, for appellee.
Appeal from the United States District Court for the Northern District of Mississippi.
Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.
Larry Shelton Hentz (Hentz), a Mississippi state prisoner, appeals the district court's denial of his petition for federal habeas relief. 28 U.S.C. Sec. 2254. The district court concluded that Hentz anticipatorily repudiated the plea agreement when he informed the prosecutor that his testimony would not comport with his prior statements. He argues that the State breached the plea agreement when it brought additional charges against him after refusing to call him to testify at a codefendant's trial, thereby rendering it impossible for him to perform his part of the bargain. Finding that the district court properly denied relief, we affirm.
The facts and procedural history of this case are rather involved. 1 A careful understanding of the complicated history underlying this appeal is necessary to resolve the issues presented. A grand jury in Tate County, Mississippi returned an indictment charging Hentz with the capital murder of James Williamson (Williamson). Several days into Hentz's trial on this charge, defense counsel approached the prosecutor regarding the possibility of a plea agreement. On November 18, 1983, Hentz entered into a plea agreement that allowed him to plead guilty to the reduced charges of murder (non-habitual) and grand larceny (non-habitual), with consecutive sentences of life imprisonment and five years, respectively. Additionally, the prosecutor agreed to dismiss other pending charges. In exchange, Hentz agreed to be debriefed immediately regarding the events in question, to submit to a polygraph examination to determine the accuracy of such information, and to give truthful testimony at any trial of Cecilia Ann Williamson (Cecilia) and/or Owen Lee Harden (Harden). Cecilia and Harden were Hentz's codefendants.
The State's theory of the case was that the murder was a contract killing. Specifically, Cecilia planned the murder of her husband, Williamson, and enlisted the assistance of Hentz, with whom she was having an affair. To carry out the plan, Hentz hired Harden to shoot Williamson. Both Hentz and Harden were "to be paid for their participation in the crime out of insurance proceeds collected by [Cecilia] upon the death of her husband." 2 Roger Hentz (Roger), Hentz's brother, borrowed a gun and a vehicle from Bill Morrow.
At the time that Hentz entered into the plea agreement, Harden had been acquitted of the capital murder offense at issue. The State nevertheless planned to prosecute Harden for other related offenses. Harden ultimately pleaded guilty to arson in connection with the burning of the murder victim's home.
Roger was never indicted for his part in this murder offense because he had been granted immunity to testify at Harden's trial. At Harden's trial, with a grant of immunity in his pocket, Roger testified that he alone committed the murder, and the jury acquitted Harden.
Subsequent to Hentz's plea of guilty, Cecilia was brought to trial for the murder of her husband. The prosecutor decided not to call Hentz as a witness after Hentz informed the prosecutor that his testimony would not consist of the information he had provided during the debriefing. 3 Consequently, the prosecutor reinstated certain charges and also brought additional charges against Hentz.
On November 29, 1984, Hentz filed a motion to set aside his guilty plea, alleging that the State breached the plea agreement. The state trial court denied the motion, finding that Hentz breached the agreement by refusing to testify truthfully. The Supreme Court of Mississippi affirmed the denial of the motion in a published opinion. Hentz v. State, 503 So.2d 262 (Miss.1987). 4
Finally, we note that Harden's trial spawned a perjury charge against Hentz. At Harden's trial, John Taylor Gullett (Gullett) testified that, while he was incarcerated in the county jail, Roger admitted killing Williamson and claimed that Harden, Cecilia, and Hentz were not involved. After the State obtained a letter Hentz had written to his mother indicating that Hentz influenced Gullett's testimony, Hentz was convicted of suborning perjured testimony. Hentz's perjury conviction was reversed on appeal because the indictment did not track the language of the relevant statutes. Hentz v. State, 510 So.2d 515 (Miss.1987). In the instant case, as the court below noted, the State "was unable to successfully prosecute any of the four suspects for the murder of Williamson without accepting pleas to lesser charges and was never able to establish who the trigger man was despite nine months of intensive investigation." Hentz remains incarcerated based on the following convictions: murder (sentence of life); grand larceny (consecutive sentence of 5 years); and conspiracy to commit grand larceny (consecutive sentence of life without parole).
On January 29, 1988, Hentz filed the instant petition challenging his murder conviction, alleging that the State violated the terms of the plea agreement when it brought charges against him subsequent to his murder conviction. The district court granted Hentz's motion for an evidentiary hearing and appointed counsel to represent him.
After the evidentiary hearing, the magistrate judge made the following findings. Hentz was in his fifth day of trial for the murder of Williamson when his attorney approached the State concerning a plea bargain in which Hentz would agree to plead guilty and testify truthfully against his codefendants Cecilia and Harden. The State's primary objective was to successfully prosecute Cecilia after Harden had been acquitted. The State needed Hentz's testimony to obtain her conviction. The State's theory of the case was that, pursuant to Cecilia's request Hentz hired Harden to be the triggerman.
Investigator Jimmy Dees and two other investigators escorted Hentz to the Tate County Jail to record the details of the plan to kill Williamson. The interview with Hentz was recorded on audio tape; however, the tape was lost prior to the evidentiary hearing. Robert Williams, the district attorney, understood that Hentz would testify in accordance with the information he gave the officers during his debriefing.
Dees was present throughout Hentz's interview and recalled the admission and details provided by Hentz during the interview with respect to the murder of Williamson. Hentz admitted that he had been having an affair with Cecilia and that she enlisted his assistance in a plan to kill her husband. Hentz hired Harden by promising him $10,000 to shoot and kill Williamson. Hentz also recruited his brother, Roger, to borrow a gun and a vehicle from Bill Morrow. Cecilia was to leave the back door of her home unlocked on the morning of the murder so that Roger and Harden could enter the house and hide in the bathroom until after she left for work. Harden was to shoot Williamson and then start a fire in the bedroom.
After making that statement, Hentz was returned to the courthouse where the plea agreement was signed in the presence of Hentz's trial attorneys. On that same day, the court accepted Hentz's guilty plea and imposed a life sentence. Three days later, the State administered a polygraph test to Hentz to verify the truthfulness of his statement. 5
Subsequently, Cecilia was tried for the murder of her husband, Williamson. The night before Hentz was to testify at Cecilia's trial, Williams, Criminal Investigator Jimmy Radford, and an assistant district attorney, met with Hentz to prepare for his testimony the following day. Hentz then informed Williams that he did not think that Williams would want to call him to testify because Williams would not want to hear the substance of his testimony. Hentz then related that his previously immunized brother, Roger, acted alone to commit the murder. Williams replied that he considered the plea agreement breached and returned to his motel room to replan his trial strategy. Williams believed that had he called Hentz to testify, Hentz would have done so, but would have testified untruthfully.
Based on the above findings, the magistrate judge concluded that, by recanting his earlier statements, Hentz had breached the plea agreement. Therefore, the magistrate judge reasoned, the State was excused from calling him to testify at Cecilia Williamson's trial under the contract principle of anticipatory repudiation. After rejecting Hentz's remaining arguments, the magistrate judge recommended denying Hentz's petition for habeas relief. The district court adopted the recommendation and denied relief. Hentz now appeals.
"Plea bargain agreements are contractual in nature, and are to be construed accordingly." United States v. Ballis, 28 F.3d 1399, 1409 (5th Cir.1994). We must determine whether the district court properly determined that Hentz breached the plea agreement.
The court below held that the contract law principle of "anticipatory repudiation" applied to determine who breached the plea agreement. The Restatement of Contracts defines repudiation as "a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim ... for total breach...." Restatement (2d) of Contracts Sec. 250 (1979). Further, "[w]here performances are to be exchanged under an exchange of promises, one party's repudiation of a duty to render...
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