Appendix — Derden v. McNeel

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MAR 16 1993

In The OFFICE OF THE CLERK

Supreme Court of the Luites States

~~

October Term, 1992

GEORGE GUY DERDEN, ITI,

Petitioner,

VS.

SHERIFF SAMMIE McNEEL- and = MISSISSIPPI

DEPARTMENT OF CORRECTIONS,

Respondents.

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

SUPPLEMENTAL APPENDIX

FOR PETITIONER

LESLIE JOYNER BOBO

Counsel of Record

BUTLER, SNOW, O’MARA,

STEVENS & CANNADA

Attorneys for Petitioner

17th Floor, Deposit Guaranty Plaza

P.O. Box 22567

Jackson, Mississippi 39225-2567

(601) 948-5711

3282

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late (800) 3 APPEAL * (800) 5 APPEAL + (800) BRIEF 21

ervices, inc.

TABLE OF CONTENTS

Appendix C— Memorandum Opinion of the United States

District Court for the Northern District of Mississippi,

Eastern Division Dated March 19,1989 ............

Appendix D — Report and Recommendation in the United

States District Court for the Northern District of

Mississippi, Eastern Division Filed February 7, 1990

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Page

25a

APPENDIX C — MEMORANDUM OPINION OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF MISSISSIPPI,

EASTERN DIVISION DATED MARCH 19, 1989

IN UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

Civil Action No. EC 88-187-D-D

GEORGE GUY DERDEN III

Petitioner

SHERIFF SAMMIE MCNEEL AND _ MISSISSIPPI

DEPARTMENT OF CORRECTIONS

Respondents

MEMORANDUM OPINION

This matter comes before the court on petitioner and

respondents’ objections to a report and recommendation filed by

United States Magistrate Jerry A. Davis dated February 7, 1990,

which recommended petitioner’s writ of habeas corpus be granted.

After reviewing the record, the report and recommendation, and

the objections to the report and recommendation,’ the court is of

the opinion that the report aad recommendation should be adopted

in part and overruled in part.

1. Although respondents’ objections were not timely filed, the court will

consider them in making its decision

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Appendix C

In April 1986, petitioner was convicted of burglary in the Clay

County Circuit Court and sentenced to serve a term of seven years

in the custody of the Mississippi Department of Corrections. He is

presently incarcerated in the Lowndes County Jail in Columbus,

Mississippi. Petitioner filed the present action pursuant to 28

U.S.C. § 2254 alleging as error: (1) that he was denied a fair trial in

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.

The magistrate concluded that petitioner is not entitled to

relief on claims 2 through 5. The court agrees and adopts sections I]

through IV of the magistrate’s report as the opinion of the court.

Petitioner’s first claim, that he was denied a fair trial in a fair

tribunal, is based upon nine separate alleged errors at trial.

Although the magistrate concluded that none of the nine alleged

errors standing alone entitle petitioner to relief, the cumulative

effect of the trial errors had the effect of rendering his trial

fundamentally unfair. The court agrees that none of the nine

alleged errors standing alone entitles petitioner to relief. The court,

however, disagrees that the cumulative effect of the trial errors

rendered the trial fundamentally unfair or that such cumulative

effect entitles petitioner to relief.

Although the Fifth Circuit has indicated a willingness to

2. Respondents argued that the court is precluded from recognizing the

cumulative error claim because petitioner did not raise that claim in his petition.

The petition alleged that each error “contributed” to the denial of a fair trial.

Construing the petition liberally, the court concludes that petitioner raised the

cumulative error claim in the petition. Guidroz v. Lynaugh, 852 F.2d 832, 834

(Sth Cir. 1988).

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Appendix C

consider the cumulative prejudice resulting from trial errors in

direct appeals from criminal convictions, see United States v.

Cochran, 697 F.2d 600, 608 (Sth Cir. 1983), it has also indicated

that cumulative error is not a proper basis upon which to grant

habeas corpus relief. Mullen v. Blackburn, 808 F.2d 1143, 1147

(Sth Cir. 1987).

In Mullen, the court considered several claims of petitioner:

(1) that identification evidence was improperly admitted; (2) that a

photograph was improperly admitted; (3) that hearsay testimony

was improperly admitted; (4) that the trial judge improperly

referred to petitioner as a “subject”; (5) that he was improperly

denied a transcript of the voir dire proceedings; (6) that he had

ineffective assistance of counsel; and (7) that the presentence

report contained inaccurate information. The court analyzed each

claim and determined that no claim warranted habeas corpus relief.

Petitioner also claimed that the claims collectively entitled him to

relief. The court refused to consider petitioner’s claim.

Mullen finally asserts that even if none of his

claims entitles him to relief individually, all of

them collectively, do. Habeas relief is available

only where a prisoner is in custody in violation

of the Constitution or of federal law. 28 U.S.C.

§ 2254. Mullen cites no authority in support of

his assertion, which, if adopted, would

encourage habeas petitioners to multiply

claims endlessly in the hope that, by advancing

a sufficient number of claims, they could

obtain relief even if none of these had any

merit. We receive enough meritless habeas

claims as it is; we decline to adopt a rule that

would have the effect of soliciting more and

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Appendix C

has nothing else to recommend it. Twenty

times zero equals zero.

Mullen, 808 F.2d at 1147. Byrd v. Armontrout, 686 F. Supp. 743,

784 (E.D. Mo. 1988), aff’d, 880 F.2d 1 (1989). See also Lee v.

Lockhart, 754 F.2d 277, 279 (8th Cir. 1985) (each claim of

constitutional error in a habeas corpus petition must stand on its

own).

The court finds Mullen controlling precedent in the case sub

judice. Standing alone, none of petitioner’s claims warrant habeas

relief. None of the alleged violations rise to the level of

constitutional error. Since none of the claims rendered the trial

fundamentally unfair to the extent that petitioner was denied due

process of law under the fourteenth amendment, see LaRcche v.

Wainwright, 599 F.2d 722, 726 (Sth Cir. 1979), the court is of the

opinion that petitioner is not entitled to habeas corpus relief.’

Even if the cumulative error argument were recognized by the

Fifth Circuit and the prejudices suffered by petitioner due to errors

that, by themselves, do not reach constitutional magnitude could

be aggregated, the court disagrees with the magistrate that the case

3. Although Mullen indicates that cumulative errors cannot be aggregated

to find constitutional error, the court notes that the cumulative error argument

might be persuasive in a case where constitutional errors exist and the analysis

becomes one of harmless error. See Kirkpatrick v. Blackburn, 777 F.2d 272, 280

(Sth Cir. 1985), cert. denied, 476 U.S. 1178, 106 S. Ct. 2907 (1986).

Accumulating the prejudice resulting from constitutional errors might convince

a court that harmless error plus harmless error does not necessarily equal

harmless error. See Lundy v. Campbell. 888 F.2d 467, 472 n.3 (6th Cir. 1989). But

harmless error analysis is conducted only after a finding of constitutional error.

Kirkpatrick, 777 F.2d at 280.

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Appendix C

sub judice is one where the aggregate of the errors produced a trial

that was so fundamentally unfair that petitioner was denied due

process of law. The Sixth Circuit, which recognizes the cumulative

prejudice approach, Walker v. Engle, 703 F.2d 959, 962-63 (6th Cir.

1983), cert. denied, 474 U.S. 962, 104 S. Ct. 396 (1983), stated the

due process test as follows: “whether the asserted trial errors,

measured according to the fundamental principles of a fair

criminal process implicit in the due process clause of the

fourteenth amendment, were so egregious as to have nullified the

legitimacy of the properly admitted substantive evidence of the

defendant’s guilt.” Lundy, 888 F.2d at 473.

The magistrate concluded that “the trial judge’s demeanor

coupled with the prosecutor’s over-zealous actions combined to

produce a prejudicial atmosphere that prevailed throughout

petitioner’s trial.” Report and Recommendation p. 31. The

following actions of the trial judge were cited as prejudicial.

DEFENSE COUNSEL:

I have one other brief—very brief witness,

your honor.

THE COURT:

All right, if it’s not brief, I’m going to make

it brief.

(Tr. 537).

During defense counsel’s closing argument, the prosecution

objected to a certain part of defense counsel’s argument. The court

responded to the objection by stating:

THE COURT:

I just wasn’t paying attention; I don’t know

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Appendix C

what was said counsel, but you may proceed.

(Tr. 582).

Included in the magistrate’s analysis as an error of prejudicial force

is the judge’s admonitions to petitioner while petitioner was

testifying in his own defense. The admonitions were as follows:

DEFENSE COUNSEL:

Assuming Turner was telling the truth, and

that van was — Had gone from West Point over

to Pheba after you’d filled up in Columbus and

made a slight detour toward Starkville, and

then gone up to Houston in your opinion would

that van have needed any gas in it in Houston?

PETITIONER:

That van could have gone to Memphis,

Tennessee, without needing any gas.

THE COURT:

It will not be received into evidence. Let me

caution the witness. Mr. Derden, I don’t care if

it had gone to Memphis or Chicago and the jury

don’t either; just answer his question, do you

understand?

PETITIONER:

Yes, sir.

THE COURT:

All right, you may proceed.

(Tr. 466-67).

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Appendix C

*_ * *

PETITIONER:

Sir, can I make a statement?

THE COURT:

No. Your lawyer can adequately represent

you.

(Tr. 468-69).

DEFENSE COUNSEL:

Mr. Derden, how long did it take you to

measure that house up yonder in Houston?

PETITIONER:

I measured two houses. I would — I would

say I was at the first house approximately

maybe an hour, and then I was at the second

house like I said I talked to the people because

the man was interested in selling some carpet in

the Houston area he indicated.

THE COURT:

Just a minute. Witness, he asked you a

simple question, how long did it take you to

measure the houses. He didn’t ask you who you

talked to or what the conversation was. Just

answer the question, how long did it take you to

measure the two houses?

(Tr. 482-83).

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Appendix C

PROSECUTION:

And the amount of a van load full, is that

correct?

PETITIONER:

(witness looks through records) There was

nineteen rolls; one of them was two hundred

and forty-eight feet and nine inches long, Oh,

I'm sorry, that’s the accumulated total

THECOURT

Mr, Derden, can't you just answer whether

or not it Was & van load full or half full or a

quarter full

PETITIONER:

It was — it was a van load full, sir. I had

nineteen rolls.

THE COURT:

All right, that’s what he asked you.

(Tr. 492).

* * *

PROSECUTION:

That's a receipt that you had, is that right,

Mr. Derden? You testified from a gas ticket that

you had, a receipt that you had put nine — so

many gallons of gas in your — in your van on

— on the ninth of February, is that right?

PETITIONER:

I certainly did, yes, sir

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Appendix C

PROSECUTION:

Now, of course, there’s nothing on that

thing to tell us when that was made out, is there,

Mr, Derden”?

PETITIONER:

Well, I've been in jail, Ladies and

Gentlemen, since January twenty, eighty

cight-five

THE COURT

Just a minute, face the lawyer and answer

the lawyer's questions, and you do not address

the jury, you understand’? I'm not going to

caution you about this again,

(Tr, 499),

PETITIONER:

Could I not answer that question he asked

me, sir if I know the answer to it?

THE COURT:

When you answer a question answer yes or

no, you understand? If it needs an explanation

I’]l let you explain your reason, but first answer

yes or no.

(Tr. 507).

The magistrate concluded that the trial judge's statements,

exclusive of other alleged errors, were not qualitatively or

quantitatively substantial enough to lead the jury to a

predisposition of guilt by improperly confusing the functions of

34a

Appendix C

judge and prosecutor. Report and Recommendation p. 17. See also

United States v. Davis, 752 F.2d 963, 974 (Sth Cir. 1985). After

reviewing the proceedings as a whole, the court agrees that the trial

judge's actions did not render the trial fundamentally unfair, There

were statements by the judge that should have been avoided or, at

least, worded differently to prevent the appearance of bias, But all

in all, the court cannot conclude that the statements led the jury to

conclude that the judge was prejudiced against petitioner,"

The magistrate’s conclusion is also based upon errors

committed by the prosecution, The prosecution committed error

during the voir dire proceedings in asking the jurors if they would

weigh the co-conspirators’ testimony as they would weigh any

other testimony, The prejudice from that incorrect statement of the

law was greatly minimized by the court's curative instruction to the

jury at the close of trial that co-conspirator’s testimony should be

viewed with great caution and suspicion. The prosecution's

statement certainly falls short of constitutional error. See

Kirkpatrick, 777 F.2d 272. The prosecution also extracted

information from a witness regarding prior crimes allegedly

committed by petitioner. The court sustained defense counsel's

objection to the testimony and instructed the jury to disregard the

testimony. The court finds no constitutional error here since the

court properly sustained the objection and issued the curative

instruction. The trial was not rendered fundamentally unfair

because the jury heard evidence of other crimes, especially when it

was instructed to disregard that testimony. See Blankenship v.

4. The court notes that at the conclusion of the evidence the trial court

instructed the jury that it was his responsibility to make rulings on the

admissibility of evidence and that the jury “should not infer, however, from any

of the court's rulings that the court has any opinion on the merits of the case

favoring one side or the other,” (Tr. 562-63),

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Appendir C

Estelle, 545 F.2d 510, 516 (Sth Cir. 1977), cert. denied, 444 U:S.

856 (1979). The court concludes that any prejudice suffered by

petitioner regarding the evidence of other crimes and the voir dire

questioning is minimal in light of the curative instructions given by

the court,

Even if such claims could be aggregated to obtain a

cumulative sum of prejudices, the sum would not be enough to

render the trial fundamentally unfair, If a due process claim is

asserted that does not claim a violation of one of the provisions of

the Bill of Rights incorporated into the fourteenth amendment by

the due process clause, due process is violated only if the

defendant's trial was fundamentally unfair, See Kirkpatrick, 777

F.2d at 278, 280, The test for determining whether a trial is

fundamentally unfair is whether there is a reasonable probability

that the verdict might have been different had the trial been

properly conducted.” Kirkpatrick, 777 F.2d at 278-79. See also

Guidroz, 852 F.2d at 835. After reviewing the trial transcript in its

entirety, the court does not find that a reasonable probability exists

that the verdict might have been different had the foregoing errors

not been committed. There was ample evidence from which a jury

could infer petitioner’s guilt. The prosecutorial comments resulted

in minimal prejudice as did the testimony regarding petitioner's

previous criminal activities. Furthermore, the comments of the

judge did not have a substantial impact on petitioner’s credibility

or the perceived validity of his defense. The trial was not perfect,

but neither was it fundamentally unfair.

Therefore, that part of the magistrate’s report and

recommendation which recommends that habeas relief be granted

on the basis that petitioner was denied due process of law because

the cumulative sum of trial errors rendered the trial fundamentally

unfair should be overruled. The remainder of the report and

3Ga

Appendix C ~

recommendation should be adopted as the opinion of the court.

THIS 19th day of March, 1989.

s/ Glen H. Davidson

? United States District Judge

37a

APPENDIX D — REPORT AND RECOMMENDATION IN

THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF MISSISSIPPI, EASTERN

DIVISION FILED FEBRUARY 7, 1990

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

NO. EC88-187-D-D

GEORGE GUY DERDEN III

Petitioner

V.

SHERIFF SAMMIE MCNEEL AND _ MISSISSIPPI

DEPARTMENT OF CORRECTIONS

Respondents

REPORT AND RECOMMENDATION

This cause comes before the court on the petition of George

Guy Derden, III for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. In April, 1986, Derden was convicted of burglary in the

Clay County Circuit Court and sentenced to serve a term of seven

years in the custody of the Mississippi Department of Corrections.

He is presently incarcerated in the Lowndes County Jail in

Columbus, Mississippi. He has exhausted his available state

remedies and now seeks review in this court.

Derden cites as error: (1) That he was denied a fair trial in a fair

tribunal; (2) that a directed verdict should have been entered or,

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Appendix D

alternatively, the verdict was against the overwhelming weighi of

the evidence; (3) that the sentence imposed was excessive; and (4)

that the state withheld evidence.

I. AFair Trial in a Fair Tribunal

As the first ground in support of his petition for habeas corpus

relief, Derden argues that he was denied a fair trial ina fair tribunal.

This argument is based upon nine separate alleged errors at trial.

Derden states that the specter of fundamental unfairness

began at the pretrial hearing. He argues that no less than five

witnesses testified at the pretrial hearing that the same police

officers who investigated this burglary had been guilty of serious

misconduct toward Derden in a previous arson investigation.

Derden claims that these two officers suborned perjury in

connection with the burglary investigation.

The state trial court conducted a hearing prior to trial on

Derden’s motion to dismiss for denial of due process (Tr. 82-188).

Seveial witnesses, including Derden, gave testimony concerning

the allegations made against the two officers. The trial court found

that there was no proof of any conspiracy to “get” Derden.

Pursuant to 28 U.S.C. § 2254(d), the factual determinations of

a State court, made after a hearing on the merits of the issue, must

be premused to be correct unless the federal court explicitly finds

that one of eight exceptions applies. Lavernia v. Lynaugh, 845 F.2d

493, 499-500 (Sth Cir. 1988) citing Sumner v. Mata, 449 U.S. 539,

544-46, (1981); Marshall v. Lonberger, 459 U.S. 422, 432 (1983).

When atrial court fails to render express findings on credibility but

makes a ruling that depends upon an implicit determination that

credits one witness’s testimony as being truthful, or implicitly

39a

Appendix D

discredits another’s, such determinations are entitled to the same

presumption of correctness that they would have been accorded

had they been made explicitly. Lavernia, 845 F.2d at 500 citing

Marshall, 459 U.S. at 433-34.

The undersigned concludes that the trial court's finding that

there was no conspiracy to “get” Derden must be presumed to be

correct under § 2254(d). Although Derden’s co-conspirators were

not present to testify,’ other witnesses did testify and the hearing

was full and fair. Furthermore, Derden has failed to establish any of

the eight exceptions listed in § 2254(d). Consequently, the trial

court’s findings are presumed to be correct.

Derden next claims that he was denied the opportunity to

adduce evidence. He states that though he made a timely request

for subpoenas for the two co-conspirators, neither one was present

at the pretrial hearing.* Derden also claims that it was

fundamentally unfair for the trial court to deny his request for

permission to run an advertisement in a local newspaper offering a

reward for any person who could supply the identity of the person

1. The co-conspiraiors had been subpoenaed by Derden’s counsel. (Tr. 85)

However, the subpoenas were not served upon the co-conspirators personally but

upon their attorneys at the direction of Derden’s counsel. (Tr. 160) The court ruled

that such service was not proper process on the witnesses. (Tr. 85, 161) Derden’s

counsel wanted to further show possible improper activity by the two police ofiicers

by questioning the co-conspirators about any plea bargain they had entered into in

exchange for their testimony against Derden. (Tr. 159-60) The trial court found that

such testimony would be cumulative. (Tr. 160) The state agreed to furnish Derden’'s

counsel with the agreements. (Tr. 161)

2. As noted supra, Derden’s counsel advised the clerk that if the two co-

conspirators could not be found, the subpoenas should be served on their attorneys

(Tr. 160) The court ruled that this was improper service. (Tr. 161)

40a

Appendix D

for whom Derden was allegedly measuring carpet at the time of the

burglary. He claims that this refusal “contrasted remarkably with

the fact that the state was offering a huge reward to the witnesses

who testified against Derden.”

The role of a federal court is more limited than that of the state

appellate court. Skillern v. Estelle, 720 F.2d 839, 852 (Sth Cir.

1983). The federal courts hold no supervisory power over state

judicial proceedings, and federal habeas corpus relief is

appropriate only when a conviction has been obtained in violation

of some constitutionally protected right. Smith v. Phillips, 455 U.S.

209, 221 (1981). A federal habeas corpus court’s inquiry is

restricted to those aspects of the trial affecting a petitioner’s

federal constitutional rights. Donnelly v. De Christofero, 416 U.S.

637 (1974). The undersigned concludes that the instant two claims

do not evince a constitutional violation.

Petitioner next contends that he was denied a fair trial when,

during the voir dire examination, the prosecutor attempted to

obtain promises by the jurors to believe the testimony of the co-

conspirators who would be state witnesses. Derden claims that

these three co-conspirators had been promised freedom in

exchange for their testimony.

During the voir dire examination, the following exchange

occurred:

MR. ALLGOOD:

Very well, The court has —- has told you

somewhat of the nature of this case. Now it is

— itis a burglary of a business. Now the state

expects the proof to show that there was a

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Appendix D

number of people that went out to burglarize

that building on this particular evening. As a

matter of fact, five is what the state expects the

proof to show. Now three of those people are

going to testify for the state, and I think it’s

going to become apparent that — that there had

been what has usually called quote “deals”

unquote made with these three other people in

order to — to — for them to testify. Now my

questions to you in this regard is simply this:

First of all, do any of you feel that such

testimony, such arrangements, if you will, are

inherently untruthful, would inherently cause

the witness not to tell the truth?

MR. WAIDE:

Your honor, if the court please, I object to

that; that’s a question for the jury to determine

as to whether it would. I don’t think he’s — this

is the proper time to be arguing about that.

MR.ALLGOOD:

I’m not arguing, your honor, I’m asking a

question.

THE COURT:

All right, just ask questions.

MR.ALLGOOD:

Thank you, your honor.

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Appendix D

THE COURT:

Don’t argue your case.

MR.ALLGOOD:

Do any of you feel that such testimony from

such witnesses is inherently untruthful?

(no response)

MR.ALLGOOD:

If you have any reservations about that,

now would be the time to raise your hand.

MR. WAIDE:

Your honor, if the court please, for the

record I do object to that. I think it’s an

improper question, incorrect according to law.

THE COURT:

All right, the record will reflect your

objection. You may proceed. I believe they’ ve

answered the question, counselor.

MR.ALLGOOD:

Thank you, your honor.

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Appendix D

THE COURT:

Now would anybody — anybody simply

disregard the testimony of those witnesses

simply because of a plea bargain arrangement

with them?

MR. WAIDE:

If the court please, I object to that now; the

jury may entirely disregard it if they find from

the evidence it should be disregarded, and

that’s an improper question.

THE COURT:

The court will instruct them on that,

counselor, at the proper time.

MR. ALLGOOD:

Would anybody simply disregard their

testimony simply because of that plea bargain

arrangement?

(no response)

MR. ALLGOOD:

All right, second, on this one point; would

any of you automatically disbelieve it just

because it was made in this context?

(no response)

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Appendix D

MR. ALLGOOD:

Okay, there is — basically what I’m trying

to get to and I — and — and as I understand it,

you are all telling me that you will weigh their

testimony as you would anybody else’s. If

anybody says that they cannot do that, that they

could not weigh their testimony as they would

anybody else’s would you please indicate it

now be raising your hand?

MR. WAIDE:

Your honor, to which I object because

they’re not entitled as a matter of law to have

their testimony weighed and anybody else’s.

That’s an incorrect statement of the law.

THE COURT:

The court will properly instruct them on the

MR. ALLGOOD:

Thank you, your honor.

THE COURT:

— Believability or credibility of witnesses

at the proper time. Let’s move on.

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Appendix D

MR.ALLGOOD:

Thank you, your honor.

Is that —- if any of you have any problem

with that statement that would weigh their

testimony as you would anybody else’s, would

you please raise your hand?

(no response)

(Tr. 127-131)

Derden argues that the prosecutor was permitted to obtain the

jurors’ promise to disregard the law in Mississippi that co-

conspirators’ testimony is to be regarded with caution and

suspicion. See, Winters v. State, 449 So.2d 766, 771 (Miss. 1984).

The United States Supreme Court has held that a prosecutor's

remarks inust be more than undesirable or even universally

condemnable before reversal is warranted; instead, the

prosecutor’s remarks must infect the trial with such unfairness as

to make the resulting conviction a denial of due process. Bell v.

Lynaugh, 828 F.2d 1085, 1095 (Sth Cir. 1987), citing Darden v.

Wainwright, 477 U.S. 168, 181 (1986). Prosecutorial statements

may violate due process in two ways. First, prosecutorial

statements may implicate a specific provision of the Bill of Rights

incorporated into the Fourteenth Amendment by the Due Process

Clause. Rogers v. Lynaugh, 848 F.2d 606, 608 (Sth Cir. 1988).

Second, if prosecutorial statements do not implicate any such other

incorporated constitutional right, they may constitute a denial of

due process generally.’ Rogers, 848 F.2d at 608, citing Donnelly v.

3. This is sometimes called a “generic substantive due process” violation. See,

Rogers, 848 F.2d at 608; Kirkpatrick v. Blackburn, 777 F.2d 272, 280 (Sth Cir. 1985).

46a

Appendix D

De Christofero, 416 U.S. 637, 643 (1974). The case law supplies a

different test for each kind of due process violation.

In the case of an asserted generic due process violation, the

court asks “whether the prosecutors’ comments so infected the trial

with unfairness as to make the resulting conviction a denial of due

process.” Rogers, 848 F.2d at 5 608, citing Darden v. Wainwright,

477 U.S. 168, 181. Under this test, although the asserted

prosecutorial misconduct may have made the defendant’s trial less

than “perfect,” that imperfection must have rendered the trial

“unfair” in order to be “constitutional error.” Rogers, Id. at 609,

citing Darden, 477 U.S. at 183 n. 15. Thus, a court may decide that

the asserted imperfection in the trial did not rise to the level of

constitutional error without having to apply a harmless error test.

Darden, 477 U.S. at 183 n. 15.

The Fifth Circuit has developed the following test of

constitutional error when a generic due process violation is

asserted: “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.” Rogers, 848 F.2d at 609, citing

Kirkpatrick, 777 F.2d at 281. The Rogers court further stated that

there is “such unfairness only if the prosecutor’s remarks evince

either persistent and pronounced misconduct or.. . the evidence

was so insubstantial! that (in probability) but for the remarks no

conviction would have occurred.” Rogers, 848 F.2d at 609, n. 7,

citing Kirkpatrick, 777 F.2d at 278-79 (quoting Fulford v. Maggip,

692 F.2d 354, 359 (Sth Cir. 1982).

In the case of asserted prosecutorial misconduct implicating

some other incorporated constitutional right such as the right to

remain silent, the court asks “whether or not the [prosecutor’s]

ee

47a

Appendix D

statement was manifestly intended or was of such character that a

jury would naturally and necessarily take it to be acomment on the

failure of the accused to testify.” Rogers, 848 F.2d at 609, citing

Milton v. Procunier, 744 F.2d 1091, 1095 (Sth Cir. 1984). If under

this test the prosecutorial misconduct is constitutional error, the

court must generally inquire further whether or not the error is

harmless. Rogers, Id. citing Chapman v. California, 386 U.S. 18,

21-26 (1967).

The undersigned concludes that petitioner's contention lies

within the first of the two areas in which prosecutorial statements

may violate due process. Since Derden has not alleged that a

specific provision of the Bill of Rights was violated by the quoted

comments, he has stated a claim of denial of due process generally.

The Mississippi Supreme Court addressed the instant claim on

direct appeal and held:

First it should be noted that the district

attorney was attempting to determine whether

or not the prospective jurors would

automatically disbelieve the testimony of the

co-conspiraters. In doing so he came perilously

close to extracting a promise from the jurors

and he did misstate the law to the panel.

The district attorney could have asked of

the panel “if any one of them would

automatically reject the testimony of a co-

conspirator as untrue simply because he was a

co-conspirator? That would have been

sufficient.

48a

Appendix D

Error was committed when the prosecutor

said to the jury that they could weigh the

testimony of the co-conspirators just as they

would anybody else's. Defense counsel

properly objected at that point on the grounds

that that was not a correct statement of law and

the court did not sustain the objection. ~

However, when it came time to instruct the jury

on the law the trial court quite properly granted

the following instruction:

I charge you that Jay Posey, Willie James

Sherrod and Tommy Turner have admitted

~ being accomplices to this burglary.

- You are to regard this testimony with great

suspicion and to consider it with caution.

Had the trial judge not granted this

instruction, the colloquy set out above would

constitute reversible error and an abuse of

discretion by the trial judge and it would be

necessary for this court to reverse the «

conviction. However, because the trial judge

properly granted the “caution and suspicion”

instruction the jury was properly instructed as

to the law and the conviction can be affirmed.

Derden v. State, 522 So.2d 752, 754 (Miss. 1988).

The undersigned must agree. Applying the tests set forth in

Rogers, supra, the undersigned cannot conclude that a due process

violation occurred in the instant cause. In reviewing the voir dire

questions for possible prejudice in the context of the trial as a

————

49a

Appendix D

whole, Passman v. Blackburn, 652 F.2d 559, 567 (citations

omitted), the questions asked by the prosecution in light of the

curative jury instruction, did not infect the trial with unfairness as

to make the resulting conviction a denial of due process. Nor, had

the questions not been asked, is there a reasonable probability that

the verdict might have been different. See Jones v. Butler, 864 F.2d

348, 356 (Sth Cir. 1988) (“to establish that a prosecutor's remarks

are so inflammatory, the petitioner must demonstrate that the

misconduct is persistent and pronounced or that the evidence of

guilt was so insubstantial that the conviction would not have

occurred but for the improper remarks”) (citations omitted); Byrne

v. Butler, 845 F.2d 501, 508 (Sth Cir. 1988). Therefore, the instant

argument must also be rejected.

Derden next argues that the trial judge’s conduct denied him a

fair trial. Initially, petitioner contends that the trial judge frustrated

offense counsel’s attempt to make an opening statement by

sustaining the prosecution’s objection to the defense’s opening

statement. On four separate occasions the prosecution objected

that defense counsel was “arguing the case.” (Tr. 253-258) The

trial judge sustained the objection each time and directed defense

counsel to refrain from arguing his case. Derden now claims that

this action “may have influenced the jury to believe that the

defense was not to be believed.”

Derden also contends that he was improperly admonished by

the trial court on several occasions. Derden argues that these

admonitions, within the hearing of the jury, “could have left no

impression other than that he [the trial judge] had a poor opinion of

Derden and of his defense.” He claims that the following

exchanges denied him a fair trial:

Q Assuming Turner was telling the truth, and

that Van was — had gone from West Point over

50a

Appendix D

to Pheba after you’d filled up in Columbus and

made a slight detour toward Starkville, and

then gone up to Houston in your opinion would

that van have needed any gas in it in Houston?

A That van could have gone to Memphis,

Tennessee, without needing any gas.

MR. WAIDE:

Tender that last document into evidence,

your honor.

THE COURT:

It will not be received into evidence. Let me

caution the witness, Mr. Derden, I don’t care if

it had gone to Memphis or Chicago and the jury

don’t either; just answer his question, do you

understand?

A Yes, sir.

~ THE COURT:

Q Allright, you may proceed.

(Tr. 466-67)

Q Did you have — what did you do the next

day?

Sla

Appendix D

A Iinstalled carpet at— in Columbus — in the

Columbus, Mississippi area.

Q Do you have any invoices or business

records showing where you were when you

installed the carpet the next day?

A Yes, sir, I do.

Q Do—could you produce those for me?

MR. ALLGOOD:

if your honor please, I — I’m going to

object to those on the same basis; these were

not provided to us in discovery; it’s the first

time I’ve ever heard of any such receipts.

MR. WAIDE:

Actually —

MR. ALLGOOD:

I don’t think they have any relevancy

whatsoever —

THE COURT:

Let him get through, counselor.

52a

Appendix D

MR. ALLGOOD:

— Any relevancy whatsoever, and I’m

going to object to them on that basis.

MR. WAIDE:

Your honor, that’s absolutely false, and I'll

produce the records where I kept asking them

to go over and look at George’s records in the

jail and he never would go, and I have the

letters I’ ve sent to him asking him to go look at

them.

MR.ALLGOOD:

If your honor please —

THE COURT:

Counsel, he’s testified where he was. Now I

don’t know what you’re trying to do with the

records. If you’ ve got witnesses here that made

these records and can properly validate them

and the people he worked for here to testify that

he was there that day, then I'll let them in;

otherwise, I am not going to let these records

in. He can testify where he was and what he did.

MR. DERDEN:

Sir, can I make a statement?

53a

Appendix D

THE COURT:

No, your lawyer can adequately represent

you.

(Tr. 468-69)

+

*

+

Q Mr. Derden, how long did it take you to

measure that house up yonder in Houston?

A I measured two houses. I would — I would

say I was at the first house approximately

maybe an hour, and then I was at the second

house like I said I talked to the people because

the man was interested in selling some carpet in

the Houston area he indicated.

THE COURT:

Just a minute. Witness, he asked you a

simple question, how long did it take you to

measure the houses. He didn’t ask you who you

talked to or what the conversation was. Just

answer the question, how long did it take you to

measure the two houses.

A IsaidI was at the first house approximately

an hour; I left the second house sometime the

best of my estimate was before midnight on

two nine.

(Tr. 482-83)

ee

S4a

Appendix D

* * *

Q I’m sure it is. You unloaded that material

there in Columbus, is that correct?

A Atthe carpet store in Columbus, yes, sir.

Q And the amount of a van load full, is that

correct? (witness looks through records) There

was nineteen rolls; one of them was two

hundred and forty-eight feet and nine inches

long. Oh, I’m sorry, that’s the accumulated

total.

THE COURT:

Mr. Derden, can’t you just answer whether

or not it was a van load full or half full or a

quarter full.

A It was — it was a van load full, sir. I had

nineteen rolls.

THE COURT:

All right, that’s what he asked you.

Q And you got gas at the Pak and Pok all right

that night, Mr. Derden, but you got it and you

put it in your van because you were running out

of gas from running down to Maben and across

and coming up, is that not right, Mr. Derden?

55a

Appendix D

A I had gassed my van in Columbus,

Mississippi; I had put thirty-five to forty

gallons of gasoline in it, and I’ve already stated

how — that I got seven miles to the gallon in it,

and ladies and gentlemen, y’ all know how far it

would run on that kind of gas mileage, two

hundred and fifty miles —

Q Now you—

A —Sixty miles or seventy miles.

Q That’s a receipt that you had, is that right,

Mr. Derden? You testified from a gas ticket that

you had a receipt that you had, a receipt that

you had put nine — so many gallons of gas in

your — in your van on — on the ninth of

February, is that right?

A Icertainly did, yes, sir.

Q Now, of course, there’s nothing on that thing

to tell us when that was made out, is there, Mr.

Derden?

A Welll’ve been in jail, ladies and gentlemen,

since January twenty, eighty — eighty-five —

THE COURT:

Just a minute. Face the lawyer and answer

the lawyer’s questions, and you do not address

56a

Appendix D

the jury, you understand? I’m not going to

caution you about this again.

(Tr. 499)

The respondents in the instant cause argue that this court

should not consider this claim because it was not raised at trial and

is thus procedurally barred pursuant to the Mississippi

contemporaneous objection rule and Wainright v. Sykes, 433 U.S.

72 (1977). However, the record does not contain any opinion or

order from the Mississippi Supreme Court that clearly and

expressly states that its decision on this claim rests on a procedural

bar. Therefore, the undersigned finds that this court may proceed to

the merits of the instant claim. See, Booker v. Lynaugh, 872 F.2d

100, 101 (Sth Cir. 1989).

In United States v. Candelaria-Gonzalez, 547 F.2d 291, 297

(Sth Cir. 1977), the Fifth Circuit stated:

A trial judge must exhibit neutrality in his

language and in the conduct of a trial before a

jury. He should avoid any possibility of

prejudicing the jury through his criticism of or

hostility toward defense counsel. (citations

omitted) Of course a trial judge is not required

to remain silent and passive throughout a jury

trial. To the contrary, he has a duty to

participate directly in the trial, and to facilitate

its orderly progress and clear the path of petty

obstructions. It is his duty to shorten

unimportant preliminaries, and to discourage

dilatory tactics of counsel. (citations omitted)

S7a

Appendix D

But in performing this duty he must make every

effort to preserve the appearance of strict

impartiality. The opinion of the judge, on

account of his position and the respect and

confidence reposed in him and in his learning

and assumed impartiality, is likely to have

great weight with the jury, and such fact of

necessity requires impartial conduct on his

part. (citations omitted) The judge is a figure of

overpowering influence, whose every change

in facial expression is noted, and whose every

word is received attentively and acted upon

with alacrity and without question. (citations

mitted)

See also, United Siates v. Bartlett, 633 F.2d 1184, 1188 (Sth Cir.

1981).

In determining whether the trial judge overstepped the limits

imposed on judge’s conduct, this court must view the proceedings

as a whole. United States v. Carpenter, 776 F.2d 1291, 1294 (Sth

Cir. 1985) citing United States v. Middlebrooks, 618 F.2d 273, 277

(Sth Cir. 1980); United States v. James, 528 F.2d 999, 1022 (Sth

Cir. 1976). To constitute constitutional error, the trial court’s

actions, viewed as a whole, must amount to intervention which

could have led the jury to a predisposition of guilt by improperly

confusing the functions of judge and prosecutor. United States v.

Davis, 752 F.2d 963, 974 (Sth Cir. 1985) (citations omitted). Such

judicial intervention must be qualitatively and quantitatively

substantial to meet this test. Davis, 752 F.2d at 974 citing United

States v. Robinson, 687 F.2d 359, 361 (11th Cir. 1982).4

4. The undersigned realizes that the cases cited which deal with alleged judicial

misconduct are factually distinguishable from the instant case in that the cited cases

(Cont'd)

58a

Appendix D

While the undersigned agrees that the record reflects tension

between the court and Derden, the incidents cited fail to disclose

any conduct on the part of the trial judge that gives rise to a

constitutional violation. In such a case as Derden’s, where the

verdict depends almost exclusively on the credibility of the

witness, the trial judge’s comments to Derden on page 466 and

page 499 of the trial record come dangerously close to an improper

comment upon the accused’s credibility. However, when viewing

the record as a whole, the comments are not qualitatively and

quantitatively substantial so that the jury could have been led toa

predisposition of guilt. Furthermore, Derden’s attack upon the

discretionary rulings of the trial court with regard to the opening

statement, does not amount to a constitutional violation. See,

David v. Maggio, 706 F.2d 568 (Sth Cir. 1983). The claims

involving prejudicial misconduct must fail.

Derden next states that the trial court’s admission of hearsay

evidence contributed to the denial of a fair trial. On cross-

examination of Derden, the state asked about a statement allegedly

made to Sheriff McNeel by one Richard Dismuke.° The defense

objected and moved for a mistrial on the ground of hearsay. The

trial court sustained the objection and overruled the motion for

mistrial. (R. 506) The state then introduced into evidence the

written statement made by Derden to Sheriff McNeel which also

contained the hearsay statement by Richard Dismuke.* (R. 506-08)

(Cont'd)

involve federal district judges. However, the standard for analyzing judicial conduct

for constitutional violations remains the same.

5. Mr. Dismuke had been subpoenaed by defense counsel five days before

trial. (Tr. 506) However, he was not present to testify at trial.

6. The defense had previously offered the statement as evidence. (Tr. 504)

59a

Appendix D

After the introduction of the written statement into evidence, the

state asked Derden whether he recalled Sheriff McNeel relating to

him [Derden] a statement made to the Sheriff by Dismuke. Again,

the defense moved for a mistrial, but the court overruled since the

hearsay statement was already in evidence. (R. 506-10) Petitioner

now claims that the admission of this statement was clearly

prejudicial and violated his right to a fair trial.

A federal court in habeas corpus petition reviewing state

evidentiary rulings does not sit as a super state supreme court to

review error under state law. Bridge v. Lynaugh, 838 F.2d 770 (Sth

Cir. 1988). The United States Court of Appeals for the Fifth Circuit

has firmly established resistance to challenges of evidentiary

matters by habeas corpus petitions. See, Bryson v. Alabama, 634

F.2d 862, 864 (Sth Cir. 1981); Woods v. Estelle, 547 F.2d 269, 271

(Sth Cir. 1977). As a general rule, admissibility of evidence is a

matter of state law, and only a contention that the admission of the

evidence rendered the trial fundamentally unfair or violated a

specific constitutional right will be considered in a federal

collateral proceeding. Johnson v. Blackburn, 778 F.2d 1044, 1050

(Sth Cir. 1985), citing Meyer v. Estelle, 621 F.2d 769, 771 (Sth Cir.

1980).

This court’s inquiry is restricted to those aspects of the trial

affecting a petitioner’s federal constitutional rights. Donnelly v.

DeChristofero, 416 U.S. 637 (1974). An evidentiary error in a state

trial does not justify federal habeas corpus relief unless it is of such

magnitude as to constitute a denial of fundamental fairness under

the Due Process Clause. Skillern, 720 F.2d at 852; Bridge, 838 F.2d

at 772; Porretto v. Stalder, 834 F.2d 461, 465 (Sth Cir. 1987);

Lowenfield v. Phelps, 817 F.2d 285, 296 (Sth Cir. 1987). This court

cannot provide collateral relief simply because the state court’s

challenged conduct would have led to reversal if the petitioner had

been tried in the federal system, Blankenship v. Estelle, 545 F.2d

60a

Appendix D

510, 516 (Sth Cir. 1977), nor is relief authorized even if state

evidentiary rules appear to have been violated. Blankenship, 545

F.2d at 516; see also, Anderson v. Maggio, 555 F.2d 447, 451 (Sth

Cir. 1977) (“the mere violation of evidentiary rules by the state trial

court does not in itself invoke habeas corpus relief. . .”).

As a guideline to applying the criterion of fundamental

fairness, the erroneous admission of prejudicial evidence can

justify habeas corpus relief only if it is material in the sense of a

crucial, critical, highly significant factor in the context of the entire

trial. Anderson v. Maggio, 555 F.2d 447, 451 (Sth Cir. 1977);

Bridge v. Lynaugh, supra at 772; Porretto v. Stalder, supra at 465;

Thomas v. Lynaugh, 812 F.2d 225, 230 (Sth Cir. 1987); Milton v.

Procunier, 744 F.2d 1091, 1097 (Sth Cir. 1984); Skillern v. Estelle,

supra, at 852.

Derden argues that the admission of the hearsay statement was

crucial impeachment evidence since the issue of whether or not

Derden swapped cars at Dismuke’s night club with one of the co-

conspirators lay at the heart of the defense. Derden claims that by

allowing the prosecution to discredit his testimony by using

hearsay statements denied him a right to a fair trial.

The undersigned agrees that the statement allegedly made by

Dismuke to the sheriff was blatant hearsay. The undersigned also

agrees that the statement was crucial impeachment evidence which

lay at the heart of Derden’s defense. Furthermore, the undersigned

is troubled that defense counsel did not have an opportunity to

cross-examine Dismuke about the statement since he was not

present at trial though a subpoena had been issued for him. Such

“back door” techniques as used in this instance to admit otherwise

inadmissible evidence is not conducive to producing

fundamentally fair trials.

6la

Appendix D

However, as noted previously, Derden’s counsel had earlier

moved the court to receive into evidence Derden’s written

statement which contained the hearsay. (Tr. 504) The court did not

rule on the motion at that time. /d. Subsequently, while cross-

examining Derden about the hearsay statement, the prosecution

joined in the defense’s motion to introduce the written statement

into evidence. (Tr. 506-507) It was then received into evidence

without objection or exception from the defense. (Tr. 507) When

the prosecution again questioned Derden about Dismuke’s

statement, the defense objected to the question on the grounds of

hearsay. (Tr. 509) The trial court overruled the objection because

the entire written statement had already been received into

evidence. (Tr. 509)

In Mississippi, a defendant cannot complain on appeal of

alleged errors invited or induced by himself. Singleton v. State, 518

So.2d 653, 655 (Miss. 1988) citing Davis v. State, 472 So.2d 428

(Miss. 1985); Browning v. State, 450 St.2d 789 (Miss. 1984); Jones

v. State, 381 So.2d 983 (Miss. 1980). When injection of

inadmissible evidence is attributable to the actions of the defense,

the defense cannot later object to such invited error. United States

v. Raymer, 876 F.2d 383, 388 (Sth Cir. 1989); United States v.

Lemaire, 712 F.2d 944, 948 (Sth Cir. 1983); United States v. Doran,

564 F.2d 1176, 1177 (Sth Cir. 1977); a United States v. Taylor, 508

F.2d 761, 763 (Sth Cir. 1975). The undersigned concludes that by

moving to introduce the written statement in support of Derden’s

testimony, Derden’s counsel made a tactical decision and invited

the erroneous admission of the hearsay. Derden cannot now be

heard to attack the trial court’s ruling and the claim must fail.

Derden next argues that the delay in bringing him to trial

contributed to the denial of a fair trial. He claims that this delay

caused him to be unable to locate his alibi witnesses and hindered

62a

Appendix D

the memory of anothe memory of another important witness.’

The burglary for which Derden was convicted occurred on

February 10, 1983. Though Derden may have been a suspect he

was not indicted until October, 1985. (Tr. 3)* He was served with

the arrest warrant on or about January 23, 1986, (Tr. 152) and

arraigned on January 28, 1986. (Tr. 4) The pretrial hearing on

motions was held on April 3, 1986, and the trial began on April 14,

1986.

In Mississippi, an accused must usually be brought to trial

_within 270 days of arraignment. MISS CODE ANN §99-17-1

(Supp. 1989). Since Derden’s trial began only sixty-six days after

he was arraigned, his claim does not come within the mandaie of

§99-17-1.

The primary limitation on the government’s ability to bring

stale criminal charges is found in the statute of limitations. United

States v. Scott, 795 F.2d 1245, 1249 (Sth Cir. 1986) citing United

States v. Marion, 404 U.S. 307, 322 (1971). The statute of

limitations is the principal device that protects a defendant from

prejudice arising from a lapse in time between the commission of a

7. Partof Derden’s defense at trial was that he was in Houston, Mississippi on

the night of the burglary measuring two houses for carpet he was to install. He could

never recall the names of the customers or the location of the houses even though the

sheriff took Derden to Houston in an attempt to locate the houses. (Tr. 500-505).

Derden also stated that he had talked to a Houston police officer on the night of

the burglary and had asked him for directions to a gas station. The officer, Jack

Nabors, testified that he had seen Derden before but could aot recall the exact time,

place, or date. (Tr. 513-516).

8. Derden was not directly implicated in the burglary for one and one-half

years. (Tr. 168-69, 171-72, 404)

63a

Appendix D

crime and an indictment or arrest. Dickerson v. Louisiana, 816 F.2d

220, 228 (Sth Cir. 1987) citing United States v. Lovasco, 431 U.S.

783, 789 (1977) and Marion, 404 U.S. at 322. However, in

Mississippi, burglary has no statute of limitations. See, MISS

CODE ANN §99-1-5 (Supp. 1989). Therefore, there was no statute

of limitations bar to the charges brought against Derden.

The Speedy Trial Clause of the Sixth Amendment to the

United States Constitution also places limitations upon the

government’s ability to allow charges to grow stale. However, the

right to a speedy trial attaches only upon the defendant becoming

an accused. United States v. Hutchins, 818 F.2d 322, 326 (Sth Cir.

1987) citing Marion, supra, at 313. A person is not an accused

unless he or she is either formally charged or eise arrested on

criminal charges. Hutchins, 818 F.2d at 326 citing Marion at 320.

In Marion, the Supreme Court stated:

Invocation of the speedy trial provision

thus need not await indictment, information, or

other formal charge. But we decline to extend

the reach of the amendment to the period prior

to arrest. Until this event occurs, a citizen

suffers no restraints on his liberty of public

accusations: his situation does not compare

with that of a defendant who has been arrested

and held to answer. Passage of time, whether

before or after arrest, may impair memories,

cause evidence to be lost, deprive the

defendant of witnesses, and otherwise interfere

with his ability to defend himself. But this

possibility of prejudice at trial is not itself

sufficient reason to wrench the Sixth

Amendment from its proper context.

64a

Appendix D

404 U.S. 321, 322. Public suspicion is not sufficient to justify the

delay in favor of a defendant’s speedy trial claim. United States v.

Loud Hawk, 474 U.S. 302, 311 (1986). The Speedy Trial Clause

does not limit the length of a criminal investigation even though

“the [suspect’s] knowledge of an ongoing, criminal investigation

will cause stress, discomfort, and perhaps a certain disruption in

normal life.” Loud Hawk, 474 U.S. at 312 quoting United States v.

MacDonald, 456 U.S. 1, 9 (1982). When a defendant is not

incarcerated or subjected to other substantial restrictions on his

liberty, a court should not weigh the time prior to that towards a

claim under the Speedy Trial clause. Loud Hawk, 474 U.S. at 312.

The undersigned concludes that Derden’s claim involves a

preindictment/prearrest delay; therefore, the speedy trial claim

must fail.

The third and final limitation against bringing overly stale

claims lies in the Fifth Amendment’s Due Process Clause. The Due

Process Clause of the Fifth Amendment requires dismissal of an

indictment if it were shown at trial that the preindictment delay

caused substantial prejudice to a defendant’s right to a fair trial and

that the delay was an intentional device to gain tactical advantage

over the defendant. Marion, supra at 324. See also, United States v.

Stumpf, 827 F.2d 1027, 1030 (Sth Cir. 1987) (“To establish that the

delay in securing an indictment violated his due process right [A

defendant must prove] that he suffered actual prejudice as a result

of the delay.”) The defendant claiming the violation bears the

burden of proving actual prejudice. Stumpf, 827 F.2d at 1030

(citations omitted). Mere passage of time does not constitute actual

prejudice nor do speculative allegations such as an alleged loss of

witnesses or evidence, or unproven charges of deliberate tactical

delay. United States v. Coppola, 788 F.2d 303, 308 (Sth Cir. 1986)

citing United States v. Lovasco, 431 U.S. 783 (1977). Actual

prejudice cannot be proven through generalized claims of memory

loss or by a claim that delay necessarily causes prejudice. Scott,

795 F.2d at 1249.

ee ane

65a

Appendix D

The undersigned concludes that Derden has failed to show

actual prejudice and has failed to show deliberate delay by the

prosecution. Therefore, he has failed to sustain his burden of proof

and his speedy trial claim must fail.

‘

In support of his claim that he was denied a fair trial, Derden

next contends that the trial court allowed defense witness Pam

Smith to be improperly cross-examined about her failure to come

forward with a statement. On cross-examination, the prosecution

repeatedly asked Smith questions concerning her failure to give a

statement to the police prior to her arrest. (Tr. 527) Derden’s

counsel objected on the basis of the witness’ privilege against self-

incrimination but was overruled. /d.

The respondents argue that the cases cited in Derden’s brief

are inapplicable here. The undersigned agrees. Doyle v. Ohio, 426

U.S. 610 (1976) and Austin v. State, 384 So.2d 600 (Miss. 1980)

deal with instances where an accused’s post-arrest/post-Miranda

silence was questioned. Such is not the case here. Witness Smith

was questioned by the prosecution about her pre-arrest silence.

The respondents also argue that Derden lacks standing to

challenge any alleged infringement of Smith’s Fifth Amendment

Rights. The undersigned agrees that the Fifth Amendment

privilege is personal to the witness and cannot be invoked by a

defendant or third party for their own benefit. United States v.

Colyer, 571 F.2d 941, 945 (Sth Cir. 1978).

The undersigned concludes that the questions posed to the

witness did no render the trial fundamentally unfair. The questions

asked merely properly attempted to impeach the credibility of the

witness who claimed she loved Derden. (Tr. 528)

66a

Appendix D

Derden next argues hat the jury was improperly allowed to

hear evidence of other crimes he was allegedly involved in. Derden

claims that the following exchange on the redirect examination of

state witness Will Sherrod rendered his trial unfair:

Q. Now, you were charged with a number of

armed robberies in Lowndes County and a

number of robberies in Alabama, is that

correct?

A. That’s right.

Q. And Mr. Waide cross-examined you on

these, is that right?

A. Right.

BY MR. WAIDE:

Your Honor, if the Court please, I object to this

and I’d like to make a record on it outside the

presence of the jury. It’s improper indirect. It’s

grossly improper as Mr. Allgood knows and I’d

like to make a record on this because I think I

know what he’s fixing to try to do.

BY THE COURT:

Well I don’t and he... . you asked him about

these burglaries. At this time the objection is

overruled.

|

67a

Appendix D

BY MR. ALLGOOD:

Q. In all of these robberies, who was

involved with you?

A. George Derden.

BY MR. WAIDE:

Your Honor I specifically object on the

grounds that now he is trying to prove other

crimes that Mr. Derden has not been charged

with today, and it is all prejudicial.

BY THE COURT:

All right the objection is now sustained and

the jury will be admonished to disregard that

remark.

(R.295-96)

Derden argues that this question violated the rule in Mississippi

that, generally, the prosecution may not introduce evidence of

another crime separate from that charged in the indictment and for

which the accused in being tried. See, Bolin v. State, 4889 So.2d

1091, 1092 (Miss. 1986).

As noted in Blankenship, supra, habeas corpus relief is not

authorized even if state evidentiary rules appear to have been

violated. Also, the objection to the question was sustained and the

jury was admonished to disregard the remark. Furthermore,

defense counsel had cross-examined Sherrod about his prior

68a

Appendix D

criminal conduct and the state could properly continue that

questioning on re-direct examination. In light of the curative

instruction, the undersigned concludes that the testimony

regarding the separate crimes, standing alone, did not render the

entire trial fundamentally unfair.

Derden’s final contention regarding the fundamental fairness

of his trial is that the alleged errors discussed supra had the

cumulative effect of rendering his trial fundamentally unfair. The

undersigned agrees.

Where the cumulative effect of trail errors is of such

magnitude as to offend a sense of justice, is denied and the writ will

issue. Bowens v. Coiner, 309 F. Supp. 1064, 1071 (S.D.W.V. 1970)

citing Rochin v. California, 342 U.S. 165, 169 (1951). Though a

bright line test for relief under a cumulative effect argument has not

been formulated, the Fifth Circuit has acknowledged “the principle

of synergistic prejudice and [is] willing to examine sums and

multiples when they are presented.” United States v. Cochran, 697

F.2d 600, 608 (Sth Cir. 1983).

The prejudicial atmosphere of Derden’s trial begins with the

trial judge. As noted above, the trial judge was openly hostile

toward Derden and his counsel on several occasions and did not

attempt to conceal his hostility. This hostility continued

throughout the trial as evidenced by the court’s comment toward

the end of the defense’s case-in-chief:

MR. WAIDE:

I have one other brief — very brief witness,

your honor.

a

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Appendix D

THE COURT:

All right, if it’s not brief, I’m going to make

it brief.

(Tr. 537)

Furthermore, during defense counsel’s closing argument, the

prosecution objected to a certain part of defense counsel’s

argument. The court responded, “I just wasn’t paying attention; |

don’t know what was said counsel, but you may proceed.” (Tr. 582)

These comments coupled with the admonitions given to petitioner

that were discussed earlier could leave no other impression with

the jury than that the trial judge had little regard for the petitioner or

his defense. The comments that called into question the

petitioner’s credibility were particularly critical since the

resolution of this case depended on the jury’s assessment of

credibility of the various witnesses. Based upon the hostile

atmosphere created by the trial judge’s remarks and attitudes, the

undersigned finds that the jury had no choice but to also harbor

negative attitudes toward Derden and his defense which probably

affected their view of the evidence. While the comments viewed

alone would not warrant habeas corpus relief, they must be

considered in context of the other elements of the trial that leads to

a conclusion that petitioner was not afforded a fair, impartial

tribunal.

Next, the undersigned finds that the district attorney’s actions

in the prosecution of this case were overly zealous. The supreme

Court and the several federal appellate courts have long recognized

that the prosecutor has a distinctive role in criminal prosecutions.

As representative of the government the prosecutor is compelled to

seek justice, not convictions. Justice is served only when

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Appendix D

convictions are sought and secured in a manner consistent with the

rules that have been crafted with great care over the centuries.

Those rules have evolved with the underlying principle that

criminal convictions should be based upon guilt clearly proven ina

calm, reflective atmosphere, free of undue passion and prejudice.

United States v. Murrah, 888 F.2d 24, 27 (Sth Cir. 1989).

As noted earlier, petitioner was not implicated in this burglary

until one and one-half years after the crime and only after deals

were cut in the interim with petitioner’s co-conspirators, Sherrod,

Turner, and Posey.? Moreover, as previously discussed, the

prosecutor during voir dire attempted to elicit promises from the

jury that they would weigh the co-conspirators’ testimony equally

with any other witness’ testimony. While the trial judge correctly

instructed the jury on this point at the close of the trial, the

prosecutor should have known that this line of voir dire was

improper. Such questions clearly infected the jury with the wrong

concept of law.

During the redirect examination of the state’s first witness, co-

conspirator Will Sherrod, the district attorney also successfully,

though improperly, informed the jury of other crimes in which

Derden allegedly was involved. (Tr. 296) Although the defense’s

objection was sustained and the jury admonished to disregard the

questions, the damage had been done. There can be no doubt that

the district attorney knew this question was an evidentiary rule

violation, but disregarded the rule in order to get this prejudicial

information before the jury. A prosecutor’s improper suggestions

“carries with it the imprimatur of the Government and may induce

the jury to trust the Government’s judgment rather than its own

9. Sherrod and Posey were not indicted for burglary and Turner received a five

year suspended sentence with five years probation.

ee |

Tla

Appendix D

view of the evidence.” United States v. Young, 470 U.S. 1, 18-19

(1985). After a thorough review of the trial transcript, the

undersigned finds that the prosecution’s general attitude and

demeanor did not produce a trial free of undue passion and

prejudice, but evidenced a clear desire to convict petitioner at all

costs.

The undersigned concludes that the trial judge’s demeanor

coupled with the prosecutor’s over-zealous actions combined to

produce a prejudicial atmosphere that prevailed throughout

petitioner’s trial. Though Derden may be guilty of the burglary

charge, his conviction must be obtained within the rules. All of

these actions by the trial court and the prosecutor had the principal

effect of improperly questioning petitioner’s credibility before the

jury in a case that hinged on credibility choices. Such a trial

atmosphere clearly infects the jury’s judgment and creates a

situation in which the determination of guilt or innocence is not

based on a reasoned review of the evidence.

II]. SUFFICIENCY OF THE EVIDENCE

Derden argues that a directed verdict should have been

entered or, in the alternative, the verdict was against the

overwhelming weight of the evidence. He claims that “it was

totally physically impossible for the burglary to have taken place

as described by the state’s own witnesses.”

Derden states that independent witnesses left no doubt that the

burglary occurred at approximately 12:30 a.m. and that burglars

Posey and Sherrod, the burglars who were left at the scene when

the other burglars fled in the vehicle, arrived back in West Point,

Mississippi at 2:00 a.m. or 2:05 a.m. He also states that the

testimony of Sheriff McNeel and burglar Turner established that

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Appendix D

the drive from the scene of the crime to West Point, along the route

Turner claims he, Derden and Pam Smith took, would have taken

over three hours. Derden argues that this inconsistency made it

physically impossible for the co-conspirators to be telling the

truth. Liberally construing this claim, Haines v. Kerner, 404 U.S.

519 (1972), the undersigned will treat it as an attack upon the

sufficiency of the evidence.

In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme

Court set forth the standard of review to be applied in federal

habeas corpus claims which allege that a state court conviction was

based on insufficient evidence. In Jackson, the petitioner had been

convicted of first-degree murder. Jd. at 309. The Supreme Court

recognized in Jackson that a sufficiency-of-the-evidence habeas

corpus claim “can almost always be judged on the written record

without need for an evidentiary hearing in the federal courts.” /d. at

322.

In Jackson, there was no question that the petitioner had shot

the deceased, but the crucial issue was whether he had specifically

intended to kill her. Jd. at 324. The court reviewed the record in the

light most favorable to the prosecution and applied the relevant

state law defining premeditation to test whether a rational

factfinder could have reasonably found the petitioner guilty of

premeditated murder. /d. The court concluded:

From the circumstantial evidence in the record,

it is clear that the trial judge could reasonably

have found beyond a reasonable doubt that the

petitioner did possess the necessary intent at or

before the time of the killing.

Id. at 324-25.

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[A] federal habeas corpus court faced with a

record of historical facts that supports

conflicting inferences must presume — that the

trier of fact resolved any such conflicts in favor

of the prosecution, and must defer to that

resolution.

Id. at 326. The court concluded that the appropriate standard for

reviewing sufficiency of evidence claims in collateral attacks upon

state criminal convictions is that:

The applicant is entitled to habeas corpus relief

if it is found that upon the record evidence

adduced at the trial no rational trier of fact

could have found proof of guilt beyond a

reasonable doubt.

Id. at 324.

This standard was employed by the Fifth Circuit in Autry v.

Estelle, 706 F.2d 1394, 1407 (Sth Cir.), reh. denied, 464 U.S. 1

(1983). In Autry, the petitioner alleged that there was insufficient

evidence presented at trial to support his conviction of murder

committed during an attempt to rob. /d. at 1407. The Fifth Circuit

held that a state court rule requiring independent evidence of

“corpus delecti” of attempted robbery had no independent

constitutional basis. Jd. Although the evidence presented at trial

showed nothing had been stolen from the murder victims or from

the cash register of the store in question, the Fifth Circuit held that

a rational trier of fact could have concluded that the murders were

committed during the course of an armed robbery, since there was

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“no other reasonable hypothesis.” /d. at 1408. The Supreme Court

denied a request for rehearing in Autry, and stated that “Federal

Courts are not forums in which to relitigate state trials.” Autry v.

Estelle, 464 U.S. 1, 3 (1983). In Barefoot v. Estelle, 463 U.S. 880

(1982), the Supreme Court further explained that the primary

avenue for challenging the validity of a conviction is the “direct

appeal” and when that process is completed, a presumption of

finality and legality attaches to the conviction. /d. at 887.

After a complete and thorough review of the extensive trial

testimony, the undersigned must conclude that petitioner’s trial!

revolved around the credibility of the witnesses’ testimony. The

undersigned finds that, viewing the evidence in the light most

favorable to the prosecution, a rational trier of fact could have

found petitioner guilty beyond a reasonable doubt.'® Moreover, it

is well-settled that a federal court may not substitute its own

judgment regarding the credibility of witnesses for that of the state

courts. Marter v. Blackburn, 777 F.2d 1007, 1012 (Sth Cir. 1985);

Dunn v. Maggio, 712 F.2d 998, 1001 (Sth Cir. 1983). Although as

previously discussed, the credibility choices for the jury were

tainted by the prejudicial trial atmosphere. Therefore, petitioner’s

claim based on the sufficiency of the evidence must fail.

Ill. THE SENTENCE

Derden contends that the seven year sentence imposed upon

him is excessive in light of the fact that none of the other co-

conspirators received any incarceration for this burglary. He

argues that since the trial judge did not conduct a presentence

investigation before he sentenced Derden, the only possible

10. The resolution of this claim is considered without regard to the previous

determination of the cumulative errors that resulted in an unfair forum.

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ground for the differing treatment was Derden’s decision to go to

trial rather than plead guilty.

In Rummel v. Estelle, 587 F.2d 651 (Sth Cir. 1978), the United

States Court of Appeals for the Fifth Circuit held that a life

sentence under the Texas habitual criminal statute violated the

Eighth Amendment because the sentence was grossly

disproportionate to the crimes. The defendant had been sentenced

to life after having been convicted three separate times for

property-related felonies. On appeal to the United States Supreme

Court, the Fifth Circuit was reversed and the Court held that the

sentence did not violate the cruel and unusual punishment

prohibition. Rummel v. Estelle, 445 U.S. 263 (1980). The Supreme

Court stated that “whatever views may be entertained regarding

severity of punishment, whether one believes in its efficacty of its

futility, . . . these are peculiarly questions of legislative policy.”

Rummel, 445 U.S. at 283, n.27., quoting Gore v. United States, 357

U.S. 386, 393 (1958); see also, Hutto v. Davis, 454 U.S. 370, 374

(1982).

Moreover, the Supreme Court has held that a reviewing court

should not consider the severity of a sentence that has been set

within statutory limits, particularly on habeas corpus review.

Townsend v. Burke, 334 U.S. 736, 741 (1948). The Fifth Circuit has

stated, that “while not reviewing the severity of a sentence, this

court will, however, carefully scrutinize the judicial process by

which punishment was imposed.” United States v. Cimino, 659

F.2d 535, 537 (Sth Cir. 1982); see also, United States v. Clements,

634 F.2d 183, 186 (Sth Cir. 1981); United States v. Cauazos, 530

F.2d 4, 5 (Sth Cir. 1976); Smith v. Wainwright, 664 F.2d 1194, 1196

(11th Cir. 1976); United States v. Fay, 267 F.2d 507, 510 (2nd Cir.

1959). As long as the trial court stays within statutory bounds und

respect procedural safeguards, the sentence may be reversed only

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Appendix D

for arbitrary or capricious abuse of discretion. United States v.

Wheeler, 802 F.2d 778, 783 (Sth Cir. 1986); United States v.

Garcia, 693 F.2d 412, 415 (Sth Cir. 1982).

The undersigned finds that the trial court imposed the seven

year sentence pursuant to Miss. Code Ann. § 97-17-33 (1972).

Therefore, finding no abuse of discretion by the trial judge and

giving great deference to the Mississippi legislature in setting the

punishment for persons convicted to burglary, the undersigned

finds no basis on which to interfere in this case.

Furthermore, the fact that Derden received a prison term and

the other co-conspirators did not does not present grounds for

habeas corpus relief. See, Buchannon v. Wainwright, 474 F.2d 1006

(Sth Cir. 1973). Also, the failure to procure a presentence report

does not provide a basis for habeas relief. See, Roman v. Parrish,

328 F. Supp. 882 (E.D. Va. 1971).

IV. THE RADIO LOG

Derden next contends that the state withheld exculpatory

evidence after the defense had made a general request (Tr. 7) for the

prosecution to produce all exculpatory evidence. He claims that

the state failed to produce the Clay County sheriff’s radio log for

2/9/83 and 2/10/83. Derden argues that the entries on this radio log

proves that state witnesses Hugh Stevenson and Sheriff Sammie

McNee!l perjured themselves at trial. Both Stevenson and McNee!

testified that, according to the radio log, Stevenson called the

sheriff’s office at 1:00 a.m. in order to run an identification check

on Mississippi license plate #MJ30501. (Tr. 384, 387, 409)

However, the radio log sheet shows that Stevenson did not make

the call until 2:05 a.m. Derden now claims that this alleged

perjured testimony and the concealment of alleged exculpatory

evidence rendered his trial unfair.

Tia

Appendix D

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme

Court held that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where

the evidence is material either to guilt or punishment, irrespective

of the good faith or bad faith of the prosecution.” Therefore, in

order to establish a violation of this rule, a defendant must prove:

(1) the prosecution suppressed evidence, (2) the suppressed

evidence was favorable to the defense, and (3) the suppressed

evidence was material to the defense. United States v. Lanford, 838

F.2d 1351, 1355 (Sth Cir. 1988); United States v. Lassiter, 819 F.2d

84, 86 (Sth Cir. 1987); Brogdon v. Blackburn, 790 F.2d 1164, 1167

(Sth Cir. 1986). “Only when omitted evidence is deemed material

can a defendant successfully claim that nondisclosure deprived

him of his constitutional right to a fair trial.” Porretto v. Stalder.

834 F.2d 461, 464 (Sth Cir. 1987), citing United States v. Agurs,

427 U.S. 97, 108 (1976).

In United States v. Agurs, 427 U.S. 97 (1976), the Supreme

Court recognized three distinct situations in which the Brady

doctrine applies and enumerated standards for determining

materiality in each circumstance." First, where the prosecution

knew or should have known that the conviction was based on false

testimony, a new trial is mandated if there is a reasonable

likelihood that the false testimony could have affected the jury

verdict. Agurs, 427 U.S. at 104.2 Second, if there was no

disclosure of information despite a specific defense request, the

test is whether the suppressed evidence might have affected the

11. See also, United States v. Bagley, 473 U.S. 667,678 (1985), United States

v. Mesa, 660 F.2d 1070, 7076 (Sth Cir. 1981); United States v. Anderson, 574 F.2d

1347, 1354 (Sth Cir. 1978); Garrison v. Maggio, 540 F.2d 1271, 1273 (Sth Cir. 1976).

12. This category is illustated by Giglio v. U.S.,405 U.S. 150(1972).

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Appendix D

outcome of the trial. /d.'* Finally, in the event of a general request

for Brady material, or no request at all, a new trial is necessary if

the omitted evidence, when viewed in the context of the entire

record, created a reasonable doubt that did not otherwise exist. /d.

at 112-113.'* However, in United States v. Bagley, 473 U.S. 667

(1985) the Supreme Court reformulated two of the three different

materiality tests into one all encompassing test. In Bagley, the

prosecutor failed to disclose evidence that the defense might have

used to impeach the government’s witnesses by showing bias or

interest. Although the court restated the three categories and the

three tests for materiality as defined by Agurs, the court held that

the test for materiality set forth in Strickland v. Washington, 466

U.S. 668 (1984), was the proper test to be used in each of the “no

request”, “general request”, and “specific request” situations.

Bagley, 473 U.S. at 62. The court stated:

We find the Strickland formulation of the

Agurs test for materiality sufficiently flexible

to cover the “no request,” “general request”,

and “specific request” cases of prosecutorial

failure to disclose evidence favorable to the

accused: The evidence 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. A “reasonable probability” is a

probability sufficient to undermine confidence

in the outcome.

13. Brady v. Maryland itself is an illustration of this category.

14. Illustrated by Agurs.

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Appendix D

Id., see also, Barnes v. Lynaugh, 817 F.2d 339 (Sth Cir. 1987);

United States v. McKellar, 798 F.2d 151, 153 (5th Cir. 1986).

The Bagley Court further held that, in light of the totality of

the circumstances, a reviewing court may consider any adverse

effect that the prosecutor’s failure to release information might

have had on defendant’s preparation and presentation of his case.

Bagley, 473 U.S. at 682; see also, United States v. McKellar, 798

F.2d 151, 153 (Sth Cir. 1986). However, if a defendant either knew

or should have known of the existence of exculpatory evidence and

its value to the defense, the prosecutor is not obliged under Brady

to furnish the disputed evidence. United States v. Ramirez, 810

F.2d 1338, 1343 (Sth Cir. 1987). Furthermore, if a defendant could

have obtained the exculpatory evidence with reasonable dili gence,

a Brady violation does not arise. Ramirez, 810 F.2d at 1343.

Notwithstanding that the prosecution has no duty to disclose

evidence about which the defendant knew or should have known,

there is no requirement of pretrial disclosure of Brady material. Jd.

In the discovery motion submitted by the defense, a general

Brady request was made. (Tr. 7) Therefore, the test to be applied is

the test for the third category as set forth in Agurs: a new trial is

necessary if the omitted evidence, when viewed in the context of

the entire record, created a reasonable doubt that did not otherwise

exist. Furthermore, the test for materiality will be that of

Strickland: evidence 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.

The undersigned concludes that the radio log is not

exculpatory evidence. The radio log could have been used to

impeach the witnesses; however, the utility of the radio log as an

impeachment device could not have been recognized until the

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Appendix D

witnesses testified at trial. Though the radio log is favorable

evidence for Derden’s time factor/time frame defense, it cannot be

said that the result of the trial would have been different had the

radio log been introduced into evidence.

To justify habeas corpus relief on a perjured testimony claim,

a petitioner must show that the state knowingly used perjured

testimony. Avery v. Procunier, 750 F.2d 444, 448 (Sth Cir. 1985).

The instant claim being liberally construed under Haines v. Kerner,

404 U.S. 519 (1972), petitioner has basically presented a Giglio’

claim that the prosecution knowingly allowed false testimony to be

presented at trial. To prevail on such a claim, the petitioner must

prove (1) that the testimony was actually false; (2) that it was

material; and (3) that the prosecution knew it was false. Griffith v.

United States, 535 F.2d 320, 321 (Sth Cir. 1976); Little v. Butler,

848 F.2d 73, 76 (Sth Cir. 1988); Avery v. Procunier, 750 F.2d 444,

447-48 (Sth Cir. 1985).

Petitioner has failed to prove that the testimony was false.

While the testimony is inconsistent with the entries on the radio

log, Derden has made no affirmative showing that the call did not

come in at 1:00 a.m. In addition, he has failed to prove that had the

witnesses not testified that the call came into the sheriff's office at

1:00 a.m., the verdict would have been different. Derden’s Giglio

claim also must fail.

Derden also claims that this “new evidence” renders the jury’s

verdict against the overwhelming weight of the evidence.

However, the mere existence of newly discovered evidence

relevant to the guilt of a state prisoner is not a ground for relief on

federal habeas corpus. Townsend v. Sain, 372 U.S. 293, 317 (1963).

15. Giglio v. United States, 405 U.S. 150(1972).

8la

Appendix D

It is well-settled that the federal courts are not forums in which to

relitigate state trials. Autry, supra.

Finally, in once again applying the Jackson v. Virginia test, the

undersigned concludes that even in light of this new evidence, the

trier of fact could have found Derden guilty beyond a reasonable

doubt even though this evidence impeaches the testimony of state

witnesses.'®

V. Assistance of Counsel

Derden’s final contention in support of his petition for habeas

corpus relief is that he was denied effective assistance of counsel.

Derden claims that his retained counsel, Honorable Jim Waide of

Tupelo, Mississippi, was generally ineffective and deficient in

performing his duties as defense counsel. He also claims that Mr.

Waide was ineffective for failing to subpoena Ricky Forrester as a

defense witness and for failing to serve the sheriff’s radio log.

Derden’s contentions are without merit.

To merit habeas corpus relief on a claim of ineffective

assistance of counsel, a habeas petitioner must satisfy the two-

prong test set out in Strickland v. Washington, 466 U.S. 668 (1984).

The Strickland test applies to retained counsel as well as appointed

counsel.'’ See, Bonvillain v. Blackburn, 780 F.2d 1248 (Sth Cir.

1986); Murry v. Maggio, 736 F.2d 279 (Sth Cir. 1984). In

Strickland, the Supreme Court held that before post-conviction

16. Although standing alone this ground is insufficient for habeas corpus

relief, itis “another brick in the wall” of cumulative errors.

17. Strickland’s two-prong standard is applied to appellate counsel as well as

trial counsel. McCrae v. Blackburn, 793 F.2d 684 (Sth Cir. 1986).

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relief can be granted for ineffective assistance of counsel, the

petitioner must establish: (1) that counsel’s performance was

deficient in that it fell below an objective standard of reasonable

professional service; and (2) that this deficient performance

prejudiced the defense such that there is a reasonable probability

that the outcome of the trial has been undermined and the result

would have been different. Strickland, 466 U.S. at 687, 688; see

also, Sawyer v. Butler, 848 F.2d 582 (Sth Cir. 1988); Lavernia v.

Lynaugh, 845 F.2d 493 (Sth Cir. 1988); Bridge v. Lynaugh, 838

F.2d 770 (Sth Cir. 1988); Thomas v. Lynaugh, 812 F.2d 225 (Sth Cir.

1987); Martin v. McCotter, 796 F.2d 813 (Sth Cir. 1986). Thus,

both a deficiency and resulting prejudice must be shown. United

States v. Lewis, 786 F.2d 1278, 1281 (Sth Cir. 1986). A petitioner's

failure to establish both prongs of the Strickland test warrants

rejection of his claim. Bates v. Blackburn, 805 F.2d 569, 578 (Sth

Cir. 1986).

Under the deficiency prong of the Strickland test, a petitioner

must show that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed by the Sixth Amendment.

Strickland, 466 U.S. at 687; see also, Bridge v. Lynaugh, 838 F.2d

770, 773 (Sth Cir. 1988). However, the Fifth Circuit has noted the

following:

In determining whether counsel’s performance

satisfies the requirements of the Sixth

Amendment, we must inquire whether,

considering all of the circumstances, counsel’s

performance was reasonable under prevailing

professional norms. Judicial scrutiny of

counsel’s performance must be _ highly

deferential; we must make every effort to

eliminate the distorting effects of hindsight and

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Appendix D

evaluate the conduct from _ counsel’s

perspective at the time.

Lavernia v. Lynaugh, 845 F.2d 493, 498 (Sth Cir. 1988). In

applying the first Strickland criterion, a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional competence, or that, under the

circumstances, the chalienged action might be considered sound

trial strategy. Bridge v. Lynaugh, 838 F.2d at 773; quoting

Strickland v. Washington, 466 U.S. at 689. Finally, counsel is given

great deference with a strong presumption that counsel has

exercised reasonable professional judgment. Martin v. McCotter,

796 F.2d 816, 817 (Sth Cir. 1986).

It is not enough to show that some, or even most, defense

lawyers would have handled the case differently. Green v.

Lynaugh, 868 F.2d 176 (Sth Cir. 1989). As the Supreme Court has

observed, “[i}t is all too tempting for a defendant to second-guess

counsel’s assistance after a conviction.” Strickland, 466 U.S. at

689. “It is likewise too facile ‘for a court, examining counsel’s

defense after it has proved unsuccessful, to conclude that a

particular act or omission of counsel was unreasonable.’ ” Green,

supra at 178 citing Strickland, 466 U.S. at 689.

The prejudice prong of the Strickland test requires a showing

that counsel’s errors were “‘so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at

687. It is not enough for the petitioner to show that the errors had

some conceivable effect on the outcome of the proceeding, Sawyer

v. Butler, 848 F.2d 582, 588 (Sth Cir. 1988); the petitioner must

demonstrate a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different. Sawyer, 848 F.2d at 588, Strickland, 466 U.S. at

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Appendix D

694. A “reasonable probability” is one sufficient to undermine

confidence in the outcome of the proceeding. Summitt v.

Blackburn, 795 F.2d 1237, 1242 (Sth Cir. 1986); see also, Lavernia

v. Lynaugh, supra. An error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the judgment.

Summitt, 795 F.2d at 1242. A habeas corpus petitioner must

affirmatively plead this resulting prejudice. Bridge v. Lynaugh,

838 F.2d 770, 773 (Sth Cir. 1988).

Because both the deficiency and prejudice prongs of the

ineffectiveness inquiry are mixed questions of law and fact, the

court must make an independent determiniation of whether

counsel’s representation satisfied the Sixth Amendment. Martin v.

McCotter, 796 F.2d 813, 817 (Sth Cir. 1986), citing Mattheson v.

King, 751 F.2d 1432, 1438 (Sth Cir. 1985), cert dismissed, 475 U.S.

1138.

In this case counsel’s alleged deficiencies did not prevent any

appellate review, nor did appellate counsel entirely fail to subject

the prosecution’s case to meaningful adversarial testing; therefore,

the standard set forth in Strickland requiring “an identifiable lapse

in the performance of the attorney” must be applied. Hamilton v.

McCotter, 772 F.2d 171, 181-82 (Sth Cir. 1985).

Petitioner argues that Mr. Waide was deficient in his

preparation for trial and in his representation at trial. A thorough

review of the entire trial record reveals that this claim is simply not

true. Mr. Waide tendered more than adequate assistance of counsel.

Derden’s attack on Mr. Waide’s trial strategy and tactics

concerning the time factor/time frame defense, including the radio

log, is not grounds for habeas corpus relief and reflects the benefit

of hindsight. Strickland v. Washington, supra.

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Appendix D

Petitioner claims that counsel was ineffective because he

failed to interview and call a certain witness, Ricky Forrester.

Petitioner fails to make a proffer of evidence as to what Forrester’s

testimony would have been. It is not logical to think that Forrester,

not having been indicted, would have testified that he originated

the burglary idea and exonerated Derden. The undersigned notes

that complaints of uncalled witnesses are not favored in federal

habeas corpus review. Murray v. Maggio, 736 F.2d 279, 282 (Sth

Cir. 1984), citing Boyd v. Estelle, 661 F.2d 388, 390 (Sth Cir. 1981 ).

Furthermore, petitioner must overcome a strong presumption that

counsel’s decision to not call the suggested witnesses was a

Strategic one. Murray, 736 F.2d at 282. In evaluating whether

counsel’s representation fell below an objective standard of

reasonableness, a court’s scrutiny must be highly deferential with a

strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance. Marker v. Blackburn,

777 F.2d 1007, 1010 (Sth Cir. 1985). Given all the circumstances of

the case at bar, the undersigned concludes that petitioner has failed

to overcome the strong presumption that his trial counsel’s conduct

fell within the range of reasonable professional assistance.

Derden’s entire ineffective assistance of counsel claim must fail.

VI. Conclusion

For the reasons stated above, the undersigned respectfully

recommends that the instant petition for habeas corpus relief be

granted and that he be released from custody unless given a new

trial wthin 120 days of the date of the final order of this court.

The parties are referred to Local Rule M-3(a) for the

applicable procedure in the event any party desires to file

objections to the findings and recommendations herein contained.

Objections are required to be in writing and must be filed within ten

86a

Appendix D

days of this date. Failure to file written objections to the proposed

findings and recommendations contained in this report within ten

days from the date of filing will bar an aggrieved party from

challenging such findings and recommendations on appeal. Nettles

v. Wainwright, 677 F.2d 404 (Sth Cir. 1982).

Respectfully submitted, this 7th day of February, 1990.

s/ Jerry Davis

UNITED STATES MAGISTRATE