1 Indeed, "[t]he background for this cause would interest

authors of murder mystery novels." Hentz v. State, 496 So.2d

668, 669 (Miss.1986).

1 United States Court of Appeals,

Fifth Circuit.

No. 94-60404.

Larry Shelton HENTZ, Petitioner-Appellant,

v.

Edward HARGETT, Superintendent, Mississippi State Penitentiary,

Respondent-Appellee.

Jan. 8, 1996.

Appeal from the United States District Co urt for the Northern

District of Mississippi.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Larry Shelton Hentz (Hentz), a Mississippi state pr isoner,

appeal s the district court's denial of his petition for federal

habeas relief. 28 U.S.C. § 2254. The district court concluded

that Hentz antici patorily repudiated the plea agreement when he

informed the prosecutor that his testimony would not comport with

his prior statements. He argues that the State breached the plea

agreement when it brought additional ch arges against him after

refusing to call him to testify at a codefendant's trial, thereby

rendering it impossible for him to perform his part of the bargain.

Finding that the district court properly denied relief, we affirm.

I. FACTS AND PROCEDURAL HISTORY

The facts and procedural history of this case are rather

involved. 1 A careful understanding of the complicated history2 Williamson v. State, 512 So.2d 868, 870 (Miss.1987).

2 underlying this appeal is necessary to resolve the issues

presented. A grand jury in Tate County, Mississippi returned an

indictment charging H entz with the capital murder of James

Williamson (Williamson). Several days into Hentz's trial on this

charge, defense counsel a pproached the prosecutor regarding the

possibility of a plea agreement. On November 18, 1983, Hentz

entered into a plea agreement that allowed him to plead guilty to

the reduced charges of murder ( non-habitual) and grand larceny

(non-habitual), with consecutive sentences of life imprisonment and

five years, respectively. Additionally, the prosecutor agreed to

dismiss other pending charges. In exchange, Hentz agreed to be

debriefed immediately regarding the events in question, to submit

to a polygraph examination to det ermine the accuracy of such

information, and to give truthful testimony at any trial of Cecilia

Ann Williamson (Cecilia) and/or Owen Lee Harden (Harden). Cecilia

and Harden were Hentz's codefendants.

The State's theory of the case was that the murder was a

contract killing. Specifically, Cecilia planned the murder of her

husband, Williamson, and enlisted the a ssistance of Hentz, with

whom she was having an affair. To carry out the plan, Hentz hired

Harden to shoot Williamson. Both Hentz and Harden were "to be paid

for their participation in the crime out of insurance proceeds

collected by [Cecilia] upon the death of he r husband." 2 Roger

Hentz (Roger), Hentz's brother, borrowed a gun and a vehicle from

Bill Morrow.3 Pursuant to Harden's plea agreement in the arson case, the

prosecution called Harden as a witness at Cecilia's trial.

Harden nonetheless refused to testify. The prosecution then

called other witnesses who testified regarding what Harden had

related to them. The jury found Cecilia guilty of capital

murder, and she was sentenced to death. The Mississippi Supreme

Court reversed Cecilia's conviction, holding that she had been

denied her constitutional right to confront the witnesses

presented against her. Williamson v. State, 512 So.2d 868

(Miss.1987).

3 At the time that Hentz entered into the plea agreement, Harden

had been acquitted of the capital murder offense at issue. The

S tate nevertheless planned to prosecute Harden for other related

offenses. Harden ultimately pleaded guilty to arson in connection

with the burning of the murder victim's home.

Roger was never indicted for his part in this murder offense

because he had been granted immunity to testify at Harden's trial.

At Harden's trial, with a grant of immunity in his po cket, Roger

testified that he alone committed the mur der, and the jury

acquitted Harden.

Subsequent to Hentz's plea of guilty, Cecilia was brought to

trial for the murder of her husband. The prosecutor decided not to

call Hentz as a witness after Hentz informed the prosecutor that

his testimony would not consist of the information he had provided

during the debriefing. 3 Consequently, the prosecutor reinstated

certain charges and also brought additional charges against Hentz.

On November 29, 1984, Hentz filed a motion to set aside his

guilty plea, alleging that the State breached the plea agreement.

The state trial court denied the motion, finding that Hentz

breached the agreement by refusing to testify truthfully. The4 The Mississippi Supreme Court held that "[r]egardless of

whether or not the State violated the plea bargain agreement

subsequent to entry of the guilty plea by [Hentz], such violation

would not require setting aside the ... guilty plea. Action for

relief, if warranted, should be directed to those causes in

Lafayette County and Desoto County." Hentz, 503 So.2d at 265.

4 Supreme Court of Mississippi affirmed the denial of the motion in

a published opinion. Hentz v. State, 503 So.2d 262 (Miss.1987). 4

Finally, we note that Harden's trial spawned a perjury charge

against Hentz. At Harden's trial, John Taylor Gullett (Gullett)

testified that, while he was incarcerated in the county jail, Roger

admitted killing Williamson and claimed that Harden, Cecilia, and

Hentz were not involved. After the State obtained a letter Hentz

h ad written to his mother indicating that Hentz influence d

Gullett 's testimony, Hentz was convicted of suborning perjured

testimony. Hentz's perjury conviction was reversed on appeal

because the indictment did not track the language of the relevant

statutes. H

entz v. State

, 510 So.2d 515 (Miss.1987). In the

instant case, as the court below noted, t he State "was unable to

successfully prosecute any of the four suspects for the murder of

Williamson without accepting pleas to lesser charges and was never

able to establish who the trigger man was despite nine months of

intensive investigation." Hentz remains incarcerated based on the

following convictions: murder (sentence of life); grand larceny

(consecutive sentence of 5 years); and conspiracy to commit grand

larceny (consecutive sentence of life without parole).

On January 29, 1988, Hentz filed the instant petition

challenging his murder conviction, alleging that the State violated5

the terms of the plea agreement when it brought charges against him

subsequent to his murder conv iction. The district court granted

Hentz's motion for an evidentiary hearing and appointed counsel to

represent him.

After the evidentiary hearing, the magistrate judge made the

following findings. Hentz was in his fifth day of trial for the

murder of Williamson when his attorney approached the State

concerning a plea bargain in which Hentz would agree to plead

guilty and testify truthfully against his codefendants Cecilia and

Harden. The State's primary objective was to successfully

prosecute Cecilia after Harden had been acquitt ed. The State

needed Hentz's testimony to obta in her conviction. The State's

theory of the case was that, pursuant to Cecilia's request, Hentz

hired Harden to be the triggerman.

Investigator Jimmy Dees and two other investigators escorted

Hentz to the Tate County Jail to record the details of the plan to

kill Williamson. The interview with Hentz was recorded on audio

tape; however, the tape was lost prior to the evidentiary hearing.

Robert Williams, the district attorney, understood that Hentz would

testify in ac cordance with the information he gave the officers

during his debriefing.

Dees was present throughout Hentz's interview and recalled the

admission and details provided by Hentz during the interview with

respect to the murder of Williamson. Hentz admitted that he had

been having an affair with Cecilia and that she enlisted his

assistance in a plan to kill her husband. Hentz hired Harden by5 The examiner found no indication of deception. However,

the magistrate judge did not allow the admission of the results

for the purpose of showing whether Hentz' statements were true or

false. Instead, the results were admitted for the sole purpose

of establishing the basis on which the prosecution acted in this

case. In other words, the results were admitted to establish the

reasonableness of the State's position in asserting a breach of

the plea agreement when Hentz subsequently changed his version of

the events.

6 promising him $10,000 to shoot and kill Williamson. Hentz also

recruited his brother, Roger, to borrow a gun and a vehicle from

Bill Morrow. Cecilia was to leave the back door of her home

unl ocked on the morning of the murder so that Roger and Harden

could enter the house and hide in the bathroom until after she left

for work. Harden was to shoot Williamson and then start a fire in

the bedroom.

After making that statement, Hentz wa s returned to the

courthouse where the plea agreement was signed in the presence of

Hentz's trial attorneys. On that same day, the court accepted

Hentz's guilty plea and imposed a life sentence. Three days later,

the State administered a polygraph test to Hentz to verify the

truthfulness of his statement. 5

Subsequently, Cecilia was tried for the murder of her husband,

Williamson. The night before Hentz was to testify at Cecilia's

trial, Williams, Criminal Investi gator Jimmy Radford, and an

assistant district attorney, met with Hentz to prepare for his

testimony the following day. Hentz then informed Williams that he

did not think that Williams would want to call him to testify

because Williams would not want to hear the substance of his

testimony. Hentz then related that his previously immunized7

brother, Roger, acted alone to commit the murder. Williams replied

that he considered the plea agreement breached and returned to his

motel room to replan his trial strategy. Williams believed that

had he called Hentz to testify, Hentz would have done so, but would

have testified untruthfully.

Based on the above findings, the magistrate judge concluded

that, by recanting his earlier statements, Hentz had breached the

plea agreement. Therefore, the magistrate judge reasoned, the

State was excused from calling him to testify at Cecilia

Williamson's trial un der the contract principle of anticipatory

repudiation. After rejecting Hentz's remaining arguments, the

magis trate judge recommended denying Hentz's petition for habeas

relief. The district court adopted the recommendation and denied

relief. Hentz now appeals.

II. ANALYSIS

A. WHETHER THE DISTRI CT COURT PROPERLY FOUND THAT HENTZ BREACHED

THE PLEA AGREEMENT.

"Plea bargain agreements are contractual in nature, and are

to be construed accordingly." U nited States v. Ballis, 28 F.3d

1399, 1409 (5th Cir.1994). We must determine whether the district

court properly determined that Hentz breached the plea agreement.

The court below held that the contract law principle of

"anticipatory repudiation" appl ied to determine who breached the

plea agreement. The Restatement of Contracts defines repudiation

as "a statement by the obligor to the obligee indicating that the

obligor will commit a breach that would of itself give the obligee

a claim ... for total breach...." Restatement (2d) of Contracts,8

§ 250 (1979). Further, "[w]here performances are to be exchanged

under an exchange of promises, one party's repudiation of a duty to

render performance discharges the other party's remaining duties to

render performance." Restatement (2d) of Contracts, § 253(2).

Relying on a comment to § 255 of the Restatement of Contracts,

the district court determined that when Hentz informed the district

attorney that he would not testify i n accordance with the

statements he provided during his d ebriefing, the State was

entitled to rely on that repre sentation. R estatement (2d) of

Contracts, § 255(a). Section 255, Comment (a) provides in part

that:

No one should be required to do a useless act, and if, because

of a party's repudiation, it appears that the occurrence of a

condition of a duty would not be followed by performance of

the duty, the non-occurrence of the condition is generally

excused. In judging whether occurrence of the condition would

be followed by performance of the duty the obligee may take

the obligor at his word.

Based on the above authorities, the district court reasoned

that, to assert a breach of the plea agreement, the State was not

required to c a ll Hentz as a witness. It held that Hentz's

"repudiation operated to excuse t he non-occurrence of such a

con dition when it appeared that the condition precedent

(testifying) would not be followed by performance of petitioner's

duty (to testify consistent with his f irst statement)."

Accordingly, the district court determined that when Hentz agreed

to testify truthfully, the State bargained for what he represented

the truth to be at the time the agreement was reached, i.e., what

he said during the debriefing. By recanting, the district court6 We have acknowledged the principle of anticipatory

repudiation in the context of a plea bargain. United States v.

Owen, 492 F.2d 1100, 1108 (5th Cir.), cert. denied, 419 U.S. 965,

95 S.Ct. 227, 42 L.Ed.2d 180 (1974); United States v. Thomas,

593 F.2d 615, 623 (5th Cir.), reversed on other grounds on

rehearing, 604 F.2d 450 (5th Cir.1979). Ultimately, however, we

found that the principle did not apply in either of those two

cases.

9 rea soned, Hentz breached the agreement, and thus, the State was

excused from calling him to testify.

Hentz argues that the district court erred when it held that

he, not the State, breached the plea agreement because he was never

given the opportunity to perform his part of the contract. He

contends that calling him to testify was a condition precedent to

the State's contention that he breached the plea agre ement.

Hentz's argument is not compelling. Of course, calling Hentz as a

witness was a condition precedent to Hentz's te stifying for the

State. However, if the principle of anticipatory repudiation

properly applies in the instant case, as the court below found,

then the condition precedent of calling Hentz to the stand to

testify was excused. 6

Hentz also argues that the district court misinterpreted his

obligation "to testify truthfully" to mean that his testimony would

be consistent with his prior statements. According to Hentz, there

is no evidence that the district attorney or anyone else informed

him that his "truthful testimony" was to consist of the statements

made during his debriefing in which he implicated Cecilia, Harden,

and himself in the crime. He adds that the plea agreement does not

define what constitutes "truthful testimony" and that any ambiguity7 A death sentence was not necessarily an unlikely sentence

in view of the fact that Cecilia was sentenced to death.

10 must be construed against the State in accordance with established

contract principles. Hentz submits that his second version of the

facts surrounding the murder was the truth and therefore would have

constituted truthful testimony at Williamson's trial in accordance

with his plea agreement. We do not find these arguments

persuasive.

After an evidentiary hearing, the magistrate judge found that

the evidence tended to establish that Hentz's initial statements

were truthful rather than the statements proffered the night before

Hentz was to testify against Cecilia. As the court acknowledged,

Williams had several reasons for believing Hentz's first version of

the events, including: the testimony of Bill Morrow at Hentz's

trial; information from a jail house informant; statements given

by Cecilia; and a letter Hentz wrote to his mother apparently

indicating that he had suborned the perjured testimony of Gullett.

Because the district court's finding is supported by the record, it

is not clearly erroneous.

Further, although the agreement does not define "truthful

t estimony," we are hard pressed to believe that Hentz understood

that the State bargained for Hentz's testimony at the trial of

Cecilia to consist of exculpa ting Cecilia, Harden (the alleged

triggerman), and himself in exchange for evading the possibility of

being sentenced to death 7 or life without parole. Such an

interpretation of the plea agreement would be unreaso nable. C f.8 Section 203 of the Restatement 2d provides in part that:

In the interpretation of a promise or agreement or a

term thereof, the following standards of preference are

generally applicable:

(a) an interpretation which gives a reasonable,

lawful, and effective meaning to all the terms is

preferred to an interpretation which leaves a part

unreasonable, unlawful, or of no effect

....

9 We also recognize that an attorney may not call a witness

to the stand when the attorney knows the witness is going to

perjure himself and that a prosecutor has ethical obligations to

bargain only for truthful testimony.

11 Restatement (2d) of Con tracts, § 203 (1979). 8 One can hardly

imagine a more unlikely scenario than the State's agreeing to a

negotiated plea of guilty so that the defendant could testify in a

later trial that he was not guilty. 9

Accordingly, in light of the district court's finding that the

evidence indicated that Hentz's initial statements were truthful,

we find that Hentz anticipatorily repudiated the agreement when he

informed the prosecutor that his testimony would not comport with

his prior statements.

Finally, we note that the plea agreement also provided that

Hentz agr eed to later submit to a polygraph examination to

determine the accuracy of the information previously given during

the debriefing. According to Hentz, the version of the events he

initially provided during the debriefing was false. Hentz

therefore breached the plea agreement regardless of whether he gave

false information during the debr iefing or whether his later10 Additionally, relying on Danley v. State, 540 So.2d 619

(Miss.1988), Hentz argues that the State breached the plea

agreement when the district attorney unilaterally decided that

Hentz had breached the bargain. In Danley v. State, 540 So.2d

619 (Miss.1988), the Mississippi Supreme Court held that a

district attorney could not make the decision whether the

defendant had failed to perform the condition precedent. That

decision had to be made by the court.

To the extent that Danley involves a state procedural

rule, it is not of constitutional concern, and therefore not

cognizable in this federal habeas proceeding. In any event,

Hentz, as a federal habeas petitioner, must state a

constitutional claim regardless of the Mississippi Supreme

Court's decision in Danley. He has failed to do so.

12 proposed testimony was false. 10

B. WHETHER THE DISTRICT COURT ERRED IN FINDING THAT HENTZ WAS NOT

ENTITLED TO WITHDRAW HIS GUILTY PLEA.

Hentz argues that the following provision in the plea

agreement required that he be allowed to withdraw his plea.

It is expressly understood between the parties that if the

Defendant does not honor the terms and conditions of this

agreement, that the State will consider the agreement null and

void. Any breach of this agreement whatsoever by the

Defendant will cancel each and every portion of the agreement

thereof and the State will be permitted to take any and all

action and/or actions deemed advisable, in the sole discretion

of the State.

(emphasis added). Hentz contends that, assuming a rguendo he

violated the agreement, the entire agreement was rendered "null and

void," and therefore, "his promise to plead guilty to murder and

grand larceny was canceled at the same exact moment when

Respondent's promise to dismiss other char g es pending against

Petitioner ... was canceled."

Hentz's contention ignores the fact that he had not only

promised to plead guilty at the time he breached the plea11 Indeed, Hentz filed the motion to set aside his guilty

plea over nine months after he was indicted for suborning

perjury.

13 agreement, he had already pleaded guilty. 1 1 In any event, "

"failure of the defendant to fulfill his promise to cooperate and

t estify fully and honestly releases the government from the plea

agreement.' " B allis, 28 F.3d at 141 0 (quoting U nited States v.

Gonzalez-Sanchez, 825 F.2d 572, 278 (1st Cir.), cert. denied, 484

U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987)). Further, if a

defendant materially breaches his plea agreement, the prosecution

is released from its obligations under that agreement and may bring

a new indictment on previously dismissed charges. I d., 28 F.3d at

1409.

Hentz next argues that his guilty plea was not knowing and

volun tary because he was not informed that he would be unable to

withdr aw his plea if h e breached the plea agreement. A federal

habeas court will uphold a guilty plea if it was knowing,

voluntary, and in telligent. H obbs v. Blackburn, 752 F.2d 1079,

1081 (5th Cir.), cert. de nied, 474 U.S. 838, 106 S.Ct. 117, 88

L.Ed.2d 95 (1985). Before accepting a guilty plea the "court must

ensure that the defendant has a full understanding of what the plea

connotes and of its consequence." T aylor v. Whitley, 933 F.2d 325,

329 (5th Cir.1991), cert. denied, 503 U.S. 988, 112 S.Ct. 1678, 118

L.Ed.2d 395 (1992) (internal quotations and citation omitted).

As the court below opined, when the defendant, rather than

the prosecutor, b reaches the agreement, the voluntariness of the

plea is not at issue because it was not the defendant who acted in12 Cf. Parry v. Rosemeyer, 64 F.3d 110, 115 n. 8 (3d

Cir.1995) (distinguishing Innes, the Third Circuit explained that

"Parry ultimately received a higher sentence than he was

expecting solely because of his post -sentencing conduct in

violation of the terms of his probation.") (emphasis in

14 reliance on a false or unkept promise. "[W]hen the prosecution

breaches its promise with res pect to an executed plea agreement,

the defendant pleads guilty on a false premise, and hence his

conviction cannot stand." M abry v. Johnson, 467 U.S. 504, 509, 104

S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984). The court also noted that

Hentz has never asserted that the State induced him to plead guilty

by false promises.

In support of his argument that he was entitled to notice of

the consequences flowing from his breach of the agreement, Hentz

cites Innes v. Dalsheim, 864 F.2d 974 (2d Cir.1988), cert. denied,

493 U.S. 809, 110 S.Ct. 50, 107 L.Ed.2d 19 (1989). In that case,

the defendant entered his guilty plea and was allowed to remain on

bond pending sentencing. During that interim, the defendant was

arrested on a dditional charges. The sentencing court found that

the defendant had breached the plea agreement and imposed a

sentence greater than the one in the plea agreement. The Second

Circuit held that the district court erred in refusing to allow the

defendant to withdraw his guilty plea because (1) the court had not

informed him, at the guilty plea hearing, that he would not be able

to withdraw his plea if h e violated the terms of the plea

agreement, and (2) the court imposed a sentence greater than the

one contained in the plea agreement. Id. at 979-80.

We find Innes inapposite. 12 Unlike the defendant in I nnes,opinion), petition for cert. filed, (U.S. Nov. 13, 1995) (No. 95-

6719).

15 Hentz received the life sentence for which he bargained, and as set

forth previously, the prosecution may bring additional charges if

the defendant breaches the plea agreement. Ballis, supra.

Finally, the above-quoted provision in the plea agreement upon

which Hentz relies gave him sufficient notice that the consequences

of any breach he committed would be in the sole discretion of the

State. Hentz has failed to show that his guilty plea was unknowing

and involuntary. S ee Mabry, 467 U.S. at 509-11, 104 S.Ct. at 2547-

48.

Accordingly, the judgment of the district court is AFFIRMED.