E-Filed Document

Jul 28 2015 18:45:04

1998-DP-00901-SCT

Pages: 12

IN THE SUPREME COURT OF MISSISSIPPI

Appellant

RICHARD GERALD JORDAN,

versus

NO. 1998DP00901SCT and NO. 3-DP-44 .

Related cases: No. 2002-DR-00896-SCT; No. 55493; No. 50551.

Appellee

STATE OF MISSISSIPPI

MOTION TO RESET EXECUTION DATE

_____________________________________
COMES NOW, the State of Mississippi, by Jim Hood, Attorney General, and Marvin
L. White, Jr., Special Assistant Attorney General, and respectfully moves this Court to set a
new execution date for the imposition of the sentence of death in the above styled and
numbered case and as grounds therefor, would show unto the Court the following facts:
I.
Richard Gerald Jordan is presently under a sentence of death for the brutal murder of
Edwina Marter on January 12, 1976, while engaged in the commission of the crime
kidnapping in violation of M ISS. C ODE ANN. 97-3-19(2)(e). The facts as recited by this
Court in its opinion can be found in Jordan v. State, 786 So.2d 987, 1-7 (Miss. 2001).
Additional factual recitations are found in Jordan v. State, 365 So.2d 1198, 1199-1200
(Miss. 1978); Jordan v. State, 464 So.2d 475, 477-78 (Miss. 1985); and Jordan v. Watkins,
681 F.2d 1067, 1069 (5th Cir. 1982); Jordan v. Epps, 740 F.Supp.2d 802, 808-09 (S.D.Miss.
2010); and Jordan v. Epps, 756 F.3d 395, 399 (5th Cir. 2014).

II.
Jordan was originally convicted and automatically sentenced to death in a single
proceeding for the January 12, 1976, kidnapping and murder of Edwina Marter in the Circuit
Court of Jackson County, Mississippi on July, 1976.1 The trial court, following the dictates
of the intervening decision in Jackson v. State, 337 So.2d 1242 (Miss. 1976), granted
petitioners motion for a new trial. Jordan was then put to trial under the judicially bifurcated
trial procedures set forth in Jackson. The jury again convicted Jordan of capital murder and
sentenced him to death in a separate proceeding on March 2, 1977. This Court affirmed the
conviction and sentence on direct appeal and rehearing was denied. Jordan v. State, 365
So.2d 1198 (Miss. 1979), cert. denied, Jordan v. Mississippi, 444 U.S. 885 (1979).
Jordan then filed his first federal habeas corpus petition on January 3, 1980, with the
United States District for the Southern District of Mississippi. Those proceedings were
stayed pending exhaustion of all claims in the state court. After receiving a stay Jordan filed
a motion for post-conviction relief with this Court. This application for leave to file a petition
for writ of error coram nobis was denied. In re Jordan, 390 So.2d 584 (Miss. 1980).
After the denial of state post-conviction relief the federal district court proceeded with
the consideration of Jordans first habeas petition. This first habeas petition was denied on
March 19, 1981, by the district court in an unpublished opinion. Jordan v. Watkins, No. S800234(C). On appeal, the Fifth Circuit affirmed in part, reversed in part, and in doing so it

On motion of the defendant venue had been changed to Jackson County, Mississippi from Harrison
County, Mississippi.

affirmed the conviction of capital murder and vacated the sentence of death, and granted the
writ as to the sentence phase of the trial. Jordan v. Watkins, 681 F.2d 1067 (5 th Cir.), reh.
and reh. en banc denied sub nom, Jordan v. Thigpen, 688 F.2d 396 (5th 1982).
Thereafter, a new sentencing hearing was conducted in state court and a sentence of
death again imposed by the jury on April 29, 1983. Jordan took his automatic appeal of the
sentence to this Court which once again affirmed the sentence of death. Jordan v. State, 464
So.2d 475 (Miss. 1985).
Jordan filed a petition for writ of certiorari from the reimposition of the sentence of
death by this Court with the United States Supreme Court. The Supreme Court granted the
petition for writ of certiorari on May 5, 1986, vacated the death sentence and remanded the
case to this Court for reconsideration in light of Skipper v. South Carolina, 476 U.S. 1
(1986). See Jordan v. Mississippi, 476 U.S. 1101 (1986).
While this Court was considering the case on remand, the petitioner filed a second
state post-conviction petition again challenging his original conviction on the basis that his
confession had been improperly admitted in the guilt phase of the trial. The state court held
that the question was barred from relitigation. Jordan v. State, 518 So.2d 1186, 1189 (Miss.
1987). In addition, the Court remanded the case for retrial of the sentence phase based on
the Skipper error.

Jordan filed another petition for writ of certiorari with this Court

challenging the ruling of the Mississippi Supreme Court holding that the resolution of the
confession was res judicata.

Certiorari was denied on October 3, 1988.

Mississippi, 488 U.S. 818 (1988).

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Jordan v.

On June 12, 1989, Jordan filed a successive petition for writ of habeas corpus once
again challenging the admission of his confession with the United States District Court for
the Southern District of Mississippi. This petition for writ of habeas corpus was denied by
the district court on September 24, 1990, in an unpublished opinion. Jordan v. Black, No.
S89-0542(G). The district court denied Jordans motion for a certificate of probable cause
to appeal on October 15, 1990. Jordan then requested that a CPC be granted by the Fifth
Circuit. See Jordan v. Black, No. 90-1866. On March 22, 1991, the Fifth Circuit granted
Jordans motion for CPC. Briefs were filed and set for oral argument. Prior to oral argument
in the Fifth Circuit, Jordan entered into a plea agreement waiving his right to seek parole or
further litigate his case in exchange for the State not seeking the death penalty on
resentencing. On December 2, 1991, Jordan was sentenced to life imprisonment without
parole pursuant to the terms of the plea agreement. On November 29, 1991, Jordan filed a
motion in the Fifth Circuit to dismiss his appeal of the case. This voluntarily motion to
dismiss the appeal was granted by the Fifth Circuit in an unpublished order on December 2,
1991.
On April 26, 1994, Jordan filed a motion for post-conviction relief with the Circuit
Court of Harrison County, Mississippi, challenging his life without parole sentence and
asking that it be corrected or amended to a sentence of life with parole citing this Courts
decision in Lanier v. State, 635 So.2d 813 (Miss. 1994), as authority for granting relief. The
circuit court conducted a hearing on the motion and denied relief on April 5, 1995. Jordan
then timely appealed the denial of relief to the Mississippi Supreme Court. On July 17,
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1997, this Court reversed the circuit court and vacated the life without parole sentence
imposed pursuant to the plea agreement as against public policy on the precedent found in
Patterson v. State, 660 So.2d 966 (Miss. 1995) and Lanier v. State, 635 So.2d 813 (Miss.
1994). This Court ordered a new sentencing trial be conducted in which Jordan could again
face the death penalty. The resentencing hearing was conducted on April 20-24, 1998, and
Jordan was again sentenced to death. On April 24, 1998, the jury returned a sentence of
death in proper form. See C.P. at 338-39.
Jordan once again took his automatic appeal of the death sentence to this On April
26, 2001, this Court affirmed the sentence of death. A timely petition for rehearing was filed
and later denied on June 28, 2001. See Jordan v. State, 786 So.2d 987 (Miss. 2001). A
petition for writ of certiorari and was denied on January 2, 2002. See Jordan v. Mississippi,
534 U.S. 1085 (2002).
Jordan then filed an application for leave to file a motion for post-conviction relief in
the trial court with this Court and later amended that motion adding additional claims. On
March 10, 2005, this Court denied post-conviction relief. Petitioner filed a motion for
rehearing which was later denied on June 2, 2005. See Jordan v. State, 912 So.2d 800
(Miss. 2005). No petition for writ of certiorari was filed with this United States Supreme
Court following the denial of state post-conviction relief.
On May 24, 2005, petitioner filed a petition for writ of habeas corpus with the United
States District Court for the Southern District of Mississippi. On August 30, 2010, the
district court issued a memorandum opinion denying habeas corpus relief. See Jordan v.
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Epps, 740 F.Supp.2d 802 (S.D.Miss. 2010). The district court also denied a Certificate of
Appealability on all claims. On September 27, 2010, petitioner then filed a motion to alter
or amend judgment and a motion for reconsideration of the denial of COA. On September
30, 2010, the district court denied the motion to alter or amend and the motion to reconsider
the denial of COA. On October 27, 2010, petitioner filed a timely notice of appeal.
On February 3, 2011, petitioner filed a motion asking the Fifth Circuit to grant COA
on three issues. The respondent filed its response on April 15, 2011. On June 25, 2014, the
Fifth Circuit entered an opinion denying the requested COA with a written opinion. See
Jordan v. Epps, 756 F.3d 395 (5th Cir 2014). Petitioner filed a petition for rehearing and a
petition for rehearing en banc. These petitions were denied on October 20, 2014.
Jordan then sought relief from the United States Supreme Court by filing a petition
for writ of certiorari to the Fifth Circuit. On June 29, 2015, the United States Supreme Court
denied certiorari. See Jordan v. Fisher, ___ U.S. ___, 135 S.Ct. 2647 (2015).
III.
It is the States position that the denial of the petition for writ of certiorari brings to
a conclusion the challenges by Jordan in state and federal court to his sentence of death. In
support of this assertion the State would invite the Courts attention to Rule 16.3, Rules of
the Supreme Court of the United States, which states:
3.
Whenever the Court denies a petition for a writ of certiorari, the
Clerk will prepare, sign, and enter an order to that effect and will notify
forthwith counsel of record and the court whose judgment was sought to be
reviewed. The order of denial will not be suspended pending disposition of
a petition for rehearing except by order of the Court or a Justice. [Emphasis
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added.]
In R OBERT L. S TERN ET AL., S UPREME C OURT P RACTICE (7th ed.1993), we find the
following:
When the Court denies a petition for certiorari, no judgment or mandate
to that effect issues to the lower court. Instead, Rule 16.3 directs the Clerk to
enter an order of denial and forthwith to notify the court below and counsel
of record as to the Courts action. The notification to the court below consists
of a letter to the lower court clerk, advising him of the denial and enclosing a
certified copy of the order denying certiorari.
The petitioner has 25 days from the date of the order in which to file a
petition for rehearing of the order denying certiorari. Rule 44.2. But the
notification to the lower court and to counsel that certiorari has been denied
is in no way withheld, stayed, or suspended during this 25-day period or
during the ensuing time necessary for the Court to consider and dispose of the
petition for rehearing. Ordinarily the Clerk notifies counsel by letter on the
same day that the orders of denial are entered, while the letters to the lower
court clerks, enclosing copies of the orders, are mailed within two or three
days thereafter.
Rule 16.3 further provides that the order of denial will not be
suspended pending the disposition of a petition for rehearing except by order
of the Court or a Justice. This means that the order of denial is legally
effective as of the time of its entry by the Supreme Court and that lower courts
may take further appropriate action in light of the denial as they see fit,
although such action usually awaits receipt of the letter of notification and the
certified copy of the order of denial.
On occasion, counsel may wish to forestall any adverse or prejudicial
action by a lower court pending the filing and disposition of a petition for
rehearing of an order denying certiorari. In that event, as Rule 16.3 indicates,
counsel must apply to the Court or to the appropriate Circuit Justice for an
order suspending the effectiveness of the order denying certiorari. The motion
to that effect can be submitted as soon as practicable at any time during the 25day rehearing period, even after the lower court has been notified of the denial
of certiorari. Counsel will of course want to apply for a suspension order
before the lower court has taken further action in reliance on the denial of
certiorari. If the application is granted, the Clerk will notify both counsel and
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the lower court that the effectiveness of the order of denial has been suspended
pending the filing and disposition of a petition for rehearing. If the petition for
rehearing is subsequently denied, the suspension of the order denying
certiorari immediately terminates and the original order of denial is
simultaneously reinstated.
...
In Richmond v. Arizona, 434 U.S. 1323 (1977), Justice Rehnquist in
chambers, after consultation with my colleagues, denied an application to
suspend an order denying certiorari in a capital case upon the ground that the
accompanying petition for rehearing seems to me to demonstrate nothing that
would indicate any reasonable likelihood of this Courts reversing its previous
decision and granting certiorari. Most of the applicants rehearing
contentions had been rejected previously. And there was not showing that the
factors that the applicant argued must be considered in imposing a death
sentence his age or his prior criminal history would be relevant in his
case, since he had not alleged that he was a minor, and the record showed that
he had previously been convicted of kidnapping.
Sec. 6.43, at 383-84. [Emphasis added.]
Later, we find the following:
However, in cases where certiorari has been denied and no judgment
or mandate will therefore issue, Rule 16.3 provides that the Clerk shall
forthwith notify the court below of the denial and that the order of denial
will not be suspended pending the disposition of a petition for rehearing
except by order of the Court or a Justice. A separate application or motion,
addressed to the appropriate Circuit Justice, requesting a suspension of the
order of denial may be filed at any time during the 25-day rehearing period.
See Sec. 6.43, supra. Then-Justice Rehnquists in-chambers opinion in
Richmond v. Arizona, 434 U.S. 1323, 1325-26 (1977), states the applicable
standard: A motion for rehearing of an order denying certiorari does not
automatically suspend the order during the Term, unlike a petition for
rehearing after full consideration of the case on the merits. The petitioner
must apply to an individual Justice for a suspension of the order denying
certiorari. * * * The question under such circumstances must be whether there
is any reasonable likelihood of the Courts changing its position and granting
certiorari.
Sec. 15.2 at 614. [Emphasis added.]

In Richmond v. Arizona, 434 U.S. 1323, 98 S.Ct. 8, 54 L.Ed.2d 34 (1977) (Rehnquist,

J., in chambers), we find the following direction as to when a case becomes final. ThenJustice Rehnquist, opined:
A motion for rehearing of an order denying certiorari does not automatically
suspend the order during the Term, unlike a petition for rehearing after full
consideration of the case on the merits. The prisoner must apply to an
individual Justice for a suspension of the order denying certiorari. Cf. this
Courts Rules 25(2) and 59(2). The question under such circumstances must
be whether there is any reasonable likelihood of the Courts changing its
position and granting certiorari. As elaborated above there does not seem to
me to be any such likelihood here. The application for a suspension of our
order denying certiorari or, in the alternative, a stay of execution is therefore
denied.
434 U.S. at 1325-26. [Emphasis added.]
Certiorari has been denied in this case. According to the rules of the United States
Supreme Court, the order of denial is legally effective as of the time of its entry by the
Supreme Court and this Court may take further appropriate action in light of the denial.
Therefore, the State of Mississippi asserts, as required by M ISS. C ODE ANN. 99-19106, that all state and federal remedies have been exhausted . . . .
Therefore, a date of execution should be set in accord with M ISS. C ODE ANN. 99-3929, which reads in part:
If, however, a stay has been entered either by a state or federal court
and post-conviction collateral relief is denied, the Supreme Court of
Mississippi shall forthwith fix a day, not more than thirty (30) days distant
from the date of said denial or the vacating of any stay entered by any federal
court, for the execution of the sentence, and a warrant shall forthwith issue
accordingly.
There has been not stay of execution in force since the denial of the writ of habeas corpus
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by the United States District Court for the Southern District of Mississippi on August 30,
2010. Therefore, there are no stays of execution in effect from any court at this time.
The State therefore request the date for the execution of the sentence of death be set
on or before August 27, 2015.
Further, M ISS. C ODE ANN. 99-19-55 (1), reads in part:
Whenever any person shall be condemned to suffer death for any crime
for which such person shall have been convicted in any court of any county
of this state, such punishment shall be inflicted at 6:00 p.m. or as soon as
possible thereafter within the next twenty-four (24) hours at an appropriate
place designated by the Commissioner of Corrections on the premises of the
Mississippi State Penitentiary at Parchman, Mississippi. [Emphasis added.]
Since the time for carrying out the execution could encompass more than one calendar
day, the order setting the execution date should contain some reference to the time frame in
which the execution should take place.
Further, the State would point out that M ISS. C ODE ANN. 99-19-105 (7), has been
repealed. This statute was the only statute that made reference to the order of this Court
setting an execution date serving as the warrant for executing the death sentenced prisoner.
Therefore, this Court should also state in its order setting the date of execution that the order
shall serve as the warrant for executing Richard Gerald Jordan.
WHEREFORE, PREMISES CONSIDERED, the State respectfully moves the
Court to set the execution date in this case as no legal impediment exists to deter the setting
of this execution date. The State, therefore, requests that a new execution date be set
forthwith in this case according to law to be imposed on or before August 27, 2015.

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Respectfully submitted,
JIM HOOD
ATTORNEY GENERAL
STATE OF MISSISSIPPI
JASON L. DAVIS
SPECIAL ASSISTANT ATTORNEY GENERAL
MARVIN L. WHITE, JR.
SPECIAL ASSISTANT ATTORNEY GENERAL
Miss. Bar No. 7149
Counsel of Record
BY:

s/ Marvin L. White, Jr.

O FFICE OF THE ATTORNEY G ENERAL

Post Office Box 220
Jackson, Mississippi 39205
Telephone: (601) 359-3680
Telefax: (601) 359-3185
[email protected]

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CERTIFICATE OF SERVICE
This is to certify that I, Marvin White, Special Assistant Attorney General for the State
of Mississippi, have electronically filed, this MOTION TO RESET EXECUTION DATE to
the following:
David P. Voisin, Esquire
P.O. Box 13984
Jackson, Mississippi 39236-3984
Further, counsel has this day caused to be mail, first-class postage prepaid, and by email, a
true and correct copy of the foregoing Motion to Reset Execution to the following:
Thomas C. Goldstein, Esquire
Tejinder Singh, Esquire
Goldstein & Russell, P.C.
7475 Wisconsin Ave., Suite 850
Bethesda, Maryland 29814
[email protected]
This, the 28th day of July, 2015.

s/ Marvin L. White, Jr.

SPECIAL ASSISTANT ATTORNEY GENERAL
Miss. Bar No. 7149

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