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
WALLER, CHIEF JUSTICE.
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.
AND PROCEDURAL HISTORY
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.
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.
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(Miss. 1976), superseded by statute on other grounds as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).
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
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
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
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).
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).
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.
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
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.
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 ...