Opinion
2022-DR-01243-SCT
10-01-2024
RICHARD GERALD JORDAN Petitioner v. STATE OF MISSISSIPPI Respondent
ORDER
T. KENNETH GRIFFIS, JR. JUSTICE
Before the en banc Court is Richard Gerald Jordan's Successor Petition for PostConviction Relief. The State has filed a response, and Jordan has filed a reply.
Jordan was first sentenced to death following his conviction on charges of kidnapping and murdering Edwina Marter in 1976. Jordan has since challenged his conviction and death sentence in multiple appeals and post-conviction proceedings.
Jordan filed the instant application on December 13,2022. He raises three issues: (1) he was denied due process under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and McWilliams v. Dunn, 582 U.S. 183, 137 S.Ct. 1790, 198 L.Ed.2d 341 (2017), which require a defendant to have an expert independent of the prosecution to assist the defense; (2) he received ineffective assistance of counsel because trial counsel failed to rebut the State's execution-style theory; and (3) cumulative error.
Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), relief is granted "only if the application, motion, exhibits, and prior record show that the claims are not procedurally barred and that they 'present a substantial showing of the denial of a state or federal right.'" Garcia v. State, 356 So.3d 101,110 (Miss. 2023) (internal quotation marks omitted) (quoting Ronk v. State, 267 So.3d 1239, 1247 (Miss. 2019)); Miss. Code Ann. § 99-39-27(5) (Rev. 2020).
Today's petition is subject to the one-year limitations period for capital cases. Miss. Code Ann. § 99-39-5(2) (Rev. 2020). And it is barred as a successive writ. Miss. Code Ann. § 99-39-27(9) (Rev. 2020). Likewise, res judicata bars Jordan from raising claims that have been addressed in prior proceedings. Jordan v. State, 213 So.3d 40, 42 (Miss. 2016). "Res judicata also extends to those claims that could have been raised in prior proceedings but were not." Brown v. State, 306 So.3d 719, 730 (Miss. 2020) (citing Ronk, 267 So.3d at 1288); Miss. Code Ann. § 99-39-21(3) (Rev. 2020).
Jordan must overcome these bars. For the first issue, Jordan invokes the intervening decision exception as set out in Mississippi Code Section 99-39-5(2)(a)(i) (Rev. 2020). For his second issue, Jordan generally proceeds under the newly-discovered-evidence exception. Miss. Code Ann. § 99-39-5(2)(a)(i), -27(9) (Rev. 2020).
Jordan claims his due process rights were violated because a court-appointed psychiatric examiner's report was provided to both the defense and the State. Specifically, he says the United States Supreme Court's recent opinion in McWilliams, 582 U.S. 183, requires that he be appointed an expert solely for his defense rather than a neutral expert shared by the defense and the State.
The psychiatric examiner's report was the subject of Jordan's direct appeal, postconviction, and habeas corpus proceedings. Jordan v. State, 786 So.2d 987, 1007 (Miss. 2001) (denying Jordan's claim that "it was error for the trial judge to order that a copy of [the examiner's] report be given to the prosecution"); Jordan v. State, 912 So.2d 800, 815-18 (Miss. 2005) (denying PCR that raised "several claims of error pertaining to" the examination and report); Jordan v. Epps, 740 F.Supp.2d 802 (S.D.Miss. 2010). Thus, we find Jordan's argument is barred by res judicata. Notably, the United States District Court for the Southern District of Mississippi rejected Jordan's claim that "by ordering ... [the] report to be simultaneously published to both sides, the trial court violated his right to due process." Jordan, 740 F.Supp.2d at 864. Even more, the district court held that "Jordan did not have a right, under Ake to an independent psychiatrist, and the trial court's appointment of [the expert] under the condition that his report be shared by both sides did not violate Jordan's constitutional rights." Id. at 868.
We further find the intervening-decision exception affords Jordan no relief. Both the time- and successive-writ bars contain intervening-decision exceptions. See Miss. Code Ann. § 99-39-5(2)(a)(i), -27(9). An intervening decision is one that "create[s] new intervening rules, rights, or claims that did not exist at the time of the prisoner's conviction." Patterson v. State, 594 So.2d 606, 608 (Miss. 1992). McWilliams, however, did not create a new rule of law. Instead, it merely clarified and reinforced A ke. See Powers v. State, 371 So.3d 629, 689 (Miss. 2023) ("an intervening decision is one that announces a new rule of law, not an application of existing law").
Jordan next claims he received ineffective assistance of counsel due to trial counsel's failure to rebut the State's execution-style theory of the case. The State's theory and Jordan's defense have been the subject of prior proceedings. Jordan, 786 So.2d at 1002-19; Jordan, 912 So.2d at 812-13 (Jordan failed to meet Strickland's prejudice prong); Jordan, 740 F.Supp.2d at 831 ("Jordan was not prejudiced within the meaning of Strickland by his counsel's performance in preparing for or handling [the witness's] testimony"); Jordan v. Epps, 756 F.3d 395,412 (5th Cir. 2014) (Jordan failed to show prejudice). We find the issue here is barred. And Jordan cannot overcome the bars as he fails to meet the statutory exceptions of cause and actual prejudice or newly discovered evidence.
Last, we find Jordan is not entitled to relief based on cumulative error. We therefore find Jordan's Successor Petition for Post-Conviction Relief should be denied.
IT IS, THEREFORE, ORDERED that Richard Gerald Jordan's Successor Petition for Post-Conviction Relief is hereby denied.
SO ORDERED.