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Jordan v. Epps

United States Court of Appeals, Fifth Circuit

June 25, 2014

RICHARD JORDAN, Petitioner - Appellant,

Petition for certiorari filed at, 01/20/2015

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Mississippi.

For Richard Jordan, Petitioner - Appellant: David Paul Voisin, Jackson, MS.

For Christopher B. Epps, Commissioner, Mississippi Department of Corrections, Respondent - Appellee: Marvin Luther White Jr., Esq., Assistant Attorney General, Office of the Attorney General for the State of Mississippi, Jackson, MS.

Before DENNIS, CLEMENT, and ELROD, Circuit Judges. JAMES L. DENNIS, Circuit Judge, concurring in part and dissenting in part.


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Petitioner-Appellant Richard Jordan appeals from the district court's denial of a certificate of appealability (COA) for habeas corpus relief pursuant to 28 U.S.C. § 2254. Jordan was convicted of capital murder committed in the course of a kidnapping and was sentenced to death on four separate occasions. Following the first three convictions, Jordan challenged his death sentence successfully, was re-tried, and was again re-sentenced to death. In 1991, on remand from the third successful challenge to his sentence, Jordan entered into an agreement with the prosecution to serve a sentence of life imprisonment without parole in exchange for not further contesting his sentence. He nevertheless challenged his sentence, seeking to have it converted to life imprisonment with the possibility of parole. The Mississippi Supreme Court held that the agreement was invalid and remanded for a new sentencing trial. Thereafter, Jordan sought to re-enter into the same plea agreement. The prosecution declined, and instead successfully sought the death penalty for the fourth time in a 1998 sentencing trial. Jordan requests a COA on several claims arising out of that 1998 sentencing. For the reasons that follow, we DENY Jordan a COA on both his prosecutorial vindictiveness claim and his ineffective assistance of counsel claims.

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In January 1976, Jordan abducted Edwina Marter from her home at gunpoint. Jordan then drove Marter to a secluded area in the woods north of Gulfport, Mississippi. While she was either running away or kneeling, Jordan fatally shot Marter in the back of the head. The following day Jordan was arrested after he picked up the $25,000 ransom he had demanded in exchange for Marter. Jordan has been tried and sentenced to death four times for killing Marter. As the procedural history and testimony offered over the course of these proceedings are relevant to his claims before us in this appeal, we will now recount the history of this case.


Jordan was first tried in 1976. Assistant District Attorney Joe Sam Owen, who figures prominently in Jordan's current claim of prosecutorial vindictiveness at issue in this appeal, prosecuted the case along with another attorney. Prior to the trial, defense counsel moved for a psychiatric examination, and Jordan was examined by Dr. Clifton Davis. The intake report from this evaluation stated incorrectly that Jordan was dishonorably discharged from the Army following his service in Vietnam--he was in fact honorably discharged, and it is unclear why the error occurred.[1] The psychiatric evaluation report contained other information that Jordan presumably related to the doctor, including Jordan's version of the kidnapping and murder, in which Jordan reported that an accomplice shot Marter.

According to Dr. Davis, Jordan " explained that the FBI was more or less responsible for [Marter's] death since they blundered the job in following instructions." " He comments that he is sorry that she was killed but then shrugged this off by saying 'better luck next time.'" Dr. Davis concluded that Jordan had antisocial personality disorder, a category describing people " in conflict with the mores of society" who " are selfish, callous, irresponsible, impulsive, and unable to feel guilt or to learn from experience and punishment." Dr. Davis found Jordan competent to stand trial. Dr. Davis did not testify at the 1976 trial, or any trial thereafter, but the expert who later examined Jordan in 1998 relied on Dr. Davis's reports. David Melton, a sheriff's investigator who investigated the crime scene where Marter's body was found, testified briefly at the first trial regarding chain of custody. Melton was not questioned about his investigation of the scene.

Under then-existing Mississippi law, Jordan was automatically sentenced to death after being found guilty of capital murder. The Mississippi Supreme Court subsequently mandated bifurcated proceedings in capital murder cases. See Jackson v. State, 337 So.2d 1242 (Miss. 1976) (citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). As a result, the trial court granted Jordan a new trial with bifurcated guilt and sentencing proceedings.


Owen also served as the lead prosecutor at Jordan's second trial. Jordan was convicted of capital murder on essentially the same evidence introduced at the first trial. During the sentencing phase, the prosecution offered new evidence to show that

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Jordan shot Marter " execution-style." Although Investigator Melton did not testify during the guilt phase, the prosecution attempted to introduce testimony from Melton regarding blood spatters that he had observed at the murder scene during the sentencing phase of the trial. Melton was prepared to testify that he had observed blood spatters at the scene that indicated that Marter was kneeling in front of Jordan when she was shot.

The trial court excluded Melton's testimony because it was not offered during the guilt phase. Dr. William Atchison, the pathologist who conducted Marter's autopsy, had, however, testified during the guilt phase as to the cause of death and the path of the bullet, which he described as traveling " upward." Based on that limited testimony as to Marter's position at the time she was killed, the prosecution was permitted to argue that Marter was on her knees when she was shot. Jordan offered evidence in mitigation, including character testimony from family and friends. Some of Jordan's witnesses mentioned his military service, and both of his parents testified that he had been honorably discharged.

The jury convicted Jordan and he was again sentenced to death. This court held that the jury was improperly instructed on imposition of the death penalty, granted federal habeas relief setting aside the death sentence (but not the conviction), and afforded Jordan a new sentencing trial. See Jordan v. Watkins, 681 F.2d 1067 (5th Cir. 1982).


In 1983, Owen, now an attorney in private practice appearing for the state as special prosecutor, prosecuted the new sentencing trial. Investigator Melton testified that he believed " Marter was standing still when the bullet was fired" based on his blood spatter analysis. According to Melton, Marter was " not moving" and possibly " was on her knees." Melton testified that he had learned to analyze blood stains at a 1973 seminar taught by Dr. Herbert MacDonnell,[2] who Melton indicated was a noted authority in the field of blood stain analysis. Dr. Atchison augmented his 1977 testimony with his opinion that the gun was between thirty inches and four feet from Marter's head when fired. Dr. Atchison also testified that the trajectory of the bullet suggested that Marter could have been kneeling, with her head bowed, or running away. The defense presented expert testimony suggesting that it was impossible to determine from Dr. Atchison's autopsy report the distance from which Marter was shot.

In mitigation, Jordan testified about his experience serving as a soldier in Vietnam. He stated that, for about two years, his " responsibility was maintaining the machine guns that the aircraft was armed with and to provide fire power if necessary to protect the aircraft against hostile attacks." He testified that he was injured in a helicopter crash and then went on " ground duty for a while." In total, he stated that he was in Vietnam for almost three years. He extended his tour longer than necessary because, " the policy was that there didn't have to be [two males in the same family] in the country," so he stayed in Vietnam to allow his brother, Robert, to be in the United States. Jordan's brother Robert also testified that Jordan extended his tour so that Robert could be home. Defense counsel asked Robert whether he noticed any change in Jordan after Vietnam. Robert responded, " I noticed some difference. It is hard to pinpoint. He would be nervous. I don't

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know; just unsettled is the best way I could put it. But there was a change. There would have to be after three years in Viet Nam [sic]."

Jordan was again sentenced to death. Thereafter, the United States Supreme Court granted certiorari, vacated the death sentence, and remanded Jordan's case to the Supreme Court of Mississippi for further consideration in light of a new Supreme Court case holding that evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating, and may not be excluded from the sentencer's consideration. See Jordan v. Mississippi, 476 U.S. 1101');"> 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352 (1986) (relying on Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986)). The Mississippi Supreme Court ordered the case remanded to the trial court for a new sentencing trial. See Jordan v. State, 518 So.2d 1186 (Miss. 1987).


In 1989, in preparation for the fourth sentencing trial, Jordan's counsel obtained an affidavit from Dr. MacDonnell, the forensics expert who taught the blood stain evidence seminar that investigator Melton had attended. In this appeal, Jordan argues that the attorneys that represented him at the 1998 trial should have obtained, reviewed, and used this 1989 affidavit of Dr. MacDonnell, obtained by the earlier counsel, in preparing his defense and specifically in rebutting Melton's testimony. In the affidavit, Dr. MacDonell averred as follows regarding Melton's 1983 blood stain testimony:

I have reviewed the testimony of Mr. David Melton[] . . . . I am the 'Herbert McDonald' to whom Mr. Melton refers . . . and it is my course he describes as having attended, and based on which he purports to have obtained his expertise in the analysis of blood spatters. . . . Based on Mr. Melton's testimony and description of the scene of the crime, I have substantial doubts about the conclusions reached by Mr. Melton. . . . If Mr. Melton's description of the scene is accurate, given my years of experience and knowledge in the field of blood-stain pattern analysis, I would conclude that the victim probably was moving at the time she was shot. . . . I am willing to conduct further investigation for the defense attorneys, and testify if necessary, if compensation is available for my work.

In 1989, Jordan's attorney also obtained supporting affidavits from psychologist Dr. John P. Wilson and psychiatrist Dr. Sheldon Zigelbaum. In his affidavit, Dr. Wilson averred that there is a " high incidence of PTSD" among Vietnam veterans. He stated that he had not met with Jordan, but " certain basic information concerning Mr. Jordan" had been relayed to him and, based on that information and the doctor's experience and research, he believed that it was " extremely likely" that, if evaluated, Jordan would be diagnosed with PTSD. Dr. Wilson stated that he was available and willing to evaluate Jordan and present testimony in mitigation if paid his " standard rates." Dr. Zigelbaum similarly averred that he had " been informed that Mr. Jordan served almost three tours of duty in Vietnam" and concluded, based on experience and research, that " it is entirely possible that Mr. Jordan may have had at the time of the crime at least some manifestations of PTSD."


Instead of undergoing a new sentencing trial, Jordan reached an agreement in 1991 under which he would be sentenced to life imprisonment without parole in exchange for his promise not to challenge that sentence.

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During the plea agreement process Jordan was represented by his attorneys at the time, Robert McDuff and Joseph Hudson, and the state was represented by Owen as special prosecutor. The court accepted the plea and Jordan was sentenced to life imprisonment without parole pursuant to the agreement in December 1991.

Several years later, the Mississippi Supreme Court held that a sentencing agreement to life without parole for a crime committed before that sentence was available under then-existing statutory law was against public policy and " void ab initio." Lanier v. State, 635 So.2d 813, 816-17 (Miss. 1994). The Mississippi Supreme Court held that such an agreement was invalid, and that both parties were therefore " placed back in the positions which they occupied prior to entering into the agreement." Id.

Following the Mississippi Supreme Court's decision in Lanier, Jordan filed a motion in the state trial court contending that his own sentence to life without parole was invalid. Before the trial court ruled on Jordan's motion, the Mississippi legislature amended the statute so that death, life with parole, or life without parole were all available sentences for the offense. See 1994 Miss. Laws Ch. 566 (amending Miss. Code Ann. § 97-3-21).[3] The Mississippi trial court then denied Jordan's motion in full, and Jordan appealed to the Mississippi Supreme Court.

The Mississippi Supreme Court held that Jordan's life without parole sentence was invalid:

[T]his case must be reversed and remanded because the contract in the case sub judice is void, even though . . . Jordan entered into the agreement knowingly, voluntarily and intelligently. The agreement providing for life without the possibility of parole was not a permissible sentencing option under [state law] in 1987, thus the circuit court had no authority to issue such a sentence. Additionally, the agreement is void as against public policy.

Jordan v. State, 786 So.2d 987, 1000 (Miss. 2001) (citing Jordan v. State, No. 95-KP-00113-SCT (Miss. August 7, 1997)). The Mississippi Supreme Court vacated Jordan's sentence and remanded to the trial court for re-sentencing, stating that " the State has the right to seek the death penalty" on remand. Id.

On remand Jordan asked Owen to reinstate the earlier agreement for a sentence of life imprisonment without parole, which was permissible pursuant to the state's post- Lanier legislation. Owen declined. Jordan filed a motion in the trial court requesting a sentence of life imprisonment without parole. Owen contested the motion and refused to waive imposition of the death penalty. The court denied the motion.


Jordan's fourth sentencing trial took place in 1998. Owen again acted as special prosecutor. Attorneys Tom Sumrall and Waide Baine represented Jordan. In this appeal, Jordan contends that these attorneys failed to provide him constitutionally required effective assistance of counsel.

Prior to trial, Jordan moved for a mental health examination to determine whether he suffered from PTSD due to his military service. The prosecution did not object to

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an examination but argued that it was entitled to a copy of the examiner's report. Jordan was examined by Dr. Henry A. Maggio, and the doctor's report was furnished to both sides.

Dr. Maggio's report recited Jordan's personal history. Jordan's counsel did not provide Dr. Maggio with Jordan's military records or honorable discharge form, or the affidavits of Dr. Wilson and Dr. Zigelbaum, and those alleged errors are at issue here. In creating his report, Dr. Maggio reviewed the 1976 reports prepared by Dr. Davis for the earlier trial. Apparently in reliance on Dr. Davis's reports, Dr. Maggio stated erroneously that Jordan was dishonorably discharged from the military. Dr. Maggio's report stated:

Review of the previous intake interview and psychiatric evaluation reveals a consistency of some of the history; however, there are moments of inconsistency in which Mr. Jordan previously acknowledged that he had always been a good con man. He has done a number of illegal activities but had not been caught except on one or two occasions; that he had been fired or asked to resign because of embezzlement of $43,000.00; that while he was under financial pressures he wrote bad checks and then was searching for a way for quick money at which time he considered bank robbery with kidnapping and extortion and had worked out the plan himself. He then readily blames the F.B.I. more or less for the woman's death shrugging it off by saying " better luck next time." He apparently displayed little remorse, held the F.B.I. responsible, no overt sadness. The review also shows that he joined the Army in 1964 and had been charged with check forgery and agreed to join the Army so the charges would be dropped. He was also court martialed in 1970 for falsification of official documents and sentenced to 9 months in Leavenworth. He received a Dishonorable Discharge from the Army in 1971. All of this is in contrast and contradiction to what he told me when he denied having any difficulty with authority figures, having an Honorable Discharge from the military and being a good guy prior to this murder and has been a good guy since then while he's in prison.

Dr. Maggio concluded, like Dr. Davis did before, that Jordan had antisocial personality disorder and was competent to stand trial.

At the trial, Dr. Maggio did not testify and his report was not introduced into evidence. However, the prosecution used Dr. Davis's and Dr. Maggio's reports in cross-examining a boyhood friend of Jordan's, Richard Luther King. Jordan's attorney stated he was not going to call two additional character witnesses because of the possibility of their being cross-examined on the basis of Dr. Maggio's report. Then, several prison employees testified as to Jordan's good work and disciplinary record in prison.

Once again, the prosecution argued that Jordan shot Marter in the back of the head, " execution-style," while she was on her knees. This theory was part of the prosecution's case for the application of the " especially heinous, atrocious or cruel" statutory aggravating circumstance under Mississippi Code § 99-19-101(5)(i).[4] Melton testified that, based on his examination of the crime scene, he was of the opinion that Marter " was in a stationary position" rather than running when Jordan shot her.

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On cross-examination, defense counsel brought out the fact that, even though Melton believed that Marter was shot from above in the back of the head while she was on her knees, investigators found no evidence of where the bullet hit the ground despite a " [v]ery thorough visual inspection" of an area in which the bullet should have landed if the execution-style shooting theory were correct.

Defense counsel also attempted to demonstrate that Jordan must have been more than six feet away from Marter when he fired the shot because he was not blood-stained. On redirect, Melton reiterated that there was no doubt in his mind that Marter was stationary. On re-cross, Melton testified that " the position of the [victim's] body would also play a great role in whether or not the [shooter] would get blood on [him]. If, for example, [the victim] w[as] on [her] knees [the shooter] would get no blood on [him]" ; but also that it would be " reasonable to assume" that if the shooter was " standing right behind the wound," he would get blood on him. On further redirect, Melton reiterated that he " believed" that Marter was on her knees when shot.

Dr. Atchison again testified in support of the execution-style shooting theory. Referring to illustrations of bullet wounds in Marter's head, Dr. Atchison described his findings and concluded that Marter was killed by a shot fired from between a few inches and thirty inches away while " in a stationary position." He further testified that it " had been [his] feeling all along" that Marter was on her knees when shot, and that it was his opinion " [t]hat she was executed." Dr. Atchison later described Marter as " possibly in a praying position" when she was shot. On cross-examination, defense counsel pointed out that, in his 1983 testimony, Dr. Atchison had testified that it was possible either that Marter was running and falling or that she was kneeling. However, Dr. Atchison concluded his testimony by reiterating, " [i]f my theory is correct then she was shot in the kneeling position in a near close wound."

The defense called its own expert, Dr. Leroy Riddick, a forensic pathologist and Alabama state medical examiner. In contrast to Dr. Atchinson, Dr. Riddick testified that, based on his examination of the evidence, he had concluded that Marter's gunshot wound was a " distant wound or an intermediate range one" from somewhere between three and ninety feet rather than a contact wound or a near wound. Dr. Riddick also testified that he " couldn't tell" and " didn't know how anybody could tell" whether Marter was stationary or moving when she was shot. On cross-examination, Owen asked Dr. Riddick to reiterate that he did not dispute that Jordan could have shot Marter from as close as three feet away and that he did not have any opinion as to whether Marter was on her knees when Jordan shot her in the back of the head. On redirect, Dr. Riddick clarified his opinion that there was insufficient evidence for any pathologist to determine that Marter was kneeling rather than standing and running when she was shot.

Defense counsel asserted Jordan's military service in Vietnam as a mitigating factor, and it was included as a possible mitigating circumstance in a jury sentencing instruction. Owen argued, " [t]here is no evidence about what [Jordan] did [in ...

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