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Jordan v. State

Supreme Court of Mississippi, En Banc

December 6, 2018

RICHARD GERALD JORDAN
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 04/24/1998

          HARRISON COUNTY CIRCUIT COURT, HON. KOSTA N. VLAHOS JUDGE.

          ATTORNEYS FOR PETITIONER: DAVID P. VOISIN JAMES W. CRAIG.

          ATTORNEY FOR RESPONDENT: OFFICE OF ATTORNEY GENERAL BY: JASON L. DAVIS.

          WALLER, CHIEF JUSTICE.

         ¶1. Richard Gerald Jordan was sentenced to death following his conviction on charges of kidnapping and murdering Edwina Marter in 1976. In his Second Successive Petition for Post-Conviction Relief, Jordan challenges the Mississippi Department of Corrections' (MDOC) using midazolam as the first drug in its three-drug lethal-injection protocol. According to Jordan, midazolam does not meet the requirements set forth in Mississippi Code Section 99-19-51(1) (Supp. 2018), which directs MDOC to use "an appropriate anesthetic or sedative" as the first drug. Because Jordan failed to provide sufficient support to warrant an evidentiary hearing, his petition is denied.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In January 1976, Jordan traveled to Gulfport, contacted a local bank, and asked to speak with a loan officer. After Jordan spoke with Charles Marter, the loan officer, Jordan found Marter's home address in a phone book and went to Marter's home. Pretending to be a phone-company employee, Jordan entered Marter's home. Marter's wife, Edwina Marter, and their three-year-old child were home. Jordan abducted Edwina from the home and forced her to drive to a secluded area in the DeSoto National Forest.

         ¶3. Jordan fatally shot Edwina in the back of the head. He then called Charles, informed Charles that he had kidnapped Edwina, and requested $25, 000 in ransom. Jordan assured Charles that Edwina was alive and concerned for her children. After multiple attempts, Jordan retrieved the ransom money. He was arrested the following day. Jordan confessed to the crime and told investigators where to find Edwina's body.

         ¶4. A jury convicted Jordan of capital murder in 1976. Shortly thereafter, the law of capital trials changed, requiring separate trials for the guilt and sentence phases. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jackson v. State, 337 So.2d 1242 (Miss. 1976), superseded by statute on other grounds as recognized in Gray v. State, 351 So.2d 1342 (Miss. 1977). In accordance with Jackson, Jordan was retried and again convicted of capital murder and sentenced to death. We affirmed Jordan's conviction and sentence. Jordan v. State, 365 So.2d 1198 (Miss. 1978).

         ¶5. Finding that the sentencing-phase jury instructions did not provide clear and objective standards for aggravating factors, the United States Court of Appeals for the Fifth Circuit vacated Jordan's sentence on petition for writ of habeas corpus and remanded for resentencing. Jordan v. Watkins, 681 F.2d 1067 (5th Cir. 1982). In 1983, Jordan was sentenced to death again. We affirmed. Jordan v. State, 464 So.2d 475 (Miss. 1985). Finding that Jordan had not been allowed to present evidence of good behavior, the United States Supreme Court vacated Jordan's death sentence. Jordan v. Mississippi, 476 U.S. 1101');">476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352 (1986). See also Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).

         ¶6. On remand, Jordan entered into an agreement with the State to accept a sentence of life imprisonment without the possibility of parole. A few years later, Jordan filed a motion for post-conviction relief, asking that his sentence be corrected or amended to a sentence of life imprisonment with the possibility of parole under Lanier v. State, 635 So.2d 813 (Miss. 1994), overruled on other grounds by Twillie v. State, 892 So.2d 187 (Miss. 2004). Because life without parole was not an option under the controlling statute at that time-Mississippi Code Section 97-3-21 (1987)-we remanded for another sentencing trial. Jordan v. State, No. 95-KP-00113-SCT (Miss. Aug. 7, 1997). Jordan was sentenced to death again, and we affirmed the sentence. Jordan v. State, 786 So.2d 987 (Miss. 2001). The United States Supreme Court denied Jordan's petition for writ of certiorari. Jordan v. Mississippi, 534 U.S. 1085, 122 S.Ct. 823, 151 L.Ed.2d 705 (2002).

         ¶7. Jordan filed an application for post-conviction relief, which this Court denied. Jordan v. State, 912 So.2d 800 (Miss. 2005). Then, Jordan sought habeas corpus relief in the United States District Court for the Southern District of Mississippi. In 2010, the district court denied habeas relief and Jordan's request for a certificate of appealability (COA). Jordan v. Epps, 740 F.Supp.2d 802 (S.D.Miss. 2010). Jordan then asked the Fifth Circuit to grant a COA; in 2014, the Fifth Circuit denied relief.[1] Jordan v. Epps, 756 F.3d 395 (5th Cir. 2014). Next, Jordan filed a petition for writ of certiorari with the United States Supreme Court. Before the Supreme Court ruled on Jordan's petition, Jordan filed an action, pursuant to 42 U.S.C. § 1983 in the United States District Court for the Southern District of Mississippi, challenging Mississippi's lethal-injection protocol. Jordan v. Fisher, No. 3:15-cv-00295-HTW-LRA. The United States Supreme Court denied Jordan's petition for writ of certiorari on June 29, 2015. Jordan v. Fisher, 135 S.Ct. 2647, 192 L.Ed.2d 948 (2015).

         ¶8. While Jordan's § 1983 case was pending in district court, on July 28, 2015, the State filed a Motion to Reset Execution Date in this Court. Before this Court ruled on the State's motion, the district court entered an injunction preventing the State from using "pentobarbitol, specifically in its compounded form, or midazolam, to execute any death row inmate." Jordan, No. 3:15-cv-00295-HTW-LRA. The State appealed the district court's order, and the Fifth Circuit vacated the injunction and remanded. Jordan v. Fisher, 823 F.3d 805 (5th Cir. 2016).

         ¶9. Jordan filed another petition for writ of certiorari on September 26, 2016. The Supreme Court denied Jordan's petition on February 21, 2017. Jordan v. Fisher, 137 S.Ct. 1069, 197 L.Ed.2d 188 (2017). Jordan's § 1983 suit remains pending before the district court.

         ¶10. In 2016, Jordan filed another petition for post-conviction relief with this Court. Jordan v. State, 224 So.3d 1252 (Miss. 2017). He raised two issues: (1) whether the State's use of midazolam as part of the three-drug lethal-injection protocol violated Mississippi Code Section 99-19-51 because it is not an "ultra-short acting barbiturate or other similar drug," and (2) whether execution of an inmate more than forty years after he was first sentenced to death violates the Eighth Amendment's prohibition against cruel and unusual punishment. At the time Jordan filed his petition, Section 99-19-51 required MDOC to use an "ultra-short acting barbiturate or other similar drug" as the first drug of the lethal-injection protocol.

         ¶11. While the petition was pending before this Court, the Mississippi Legislature amended Section 99-19-51. The amendment substituted the requirement for an "ultra-short acting barbiturate or other similar drug" for the current mandate that MDOC use an "appropriate anesthetic or sedative[.]" Miss. Code Ann. 99-19-51(1) (Supp. 2018). Due to the amendment, this Court concluded that Jordan's statutory-based challenge was moot and "decline[d] to address whether midazolam is or is not a permissible drug under the current statute." Jordan, 224 So.3d at 1253. Regarding the second issue, this Court denied relief, finding that the forty-year delay does not amount to cruel and unusual punishment. Id.

         ¶12. Jordan filed a petition for writ of certiorari in the United States Supreme Court, challenging this Court's decision to deny relief for the second issue. He raised two issues in that petition: (1) "Whether incarcerating a prisoner over four decades awaiting execution, even after the State found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate purposes"; and (2) "Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it ...


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