Reply Brief — Richard Gerald Jordan, Petitioner v. Mississippi

Supreme Court briefJun 24, 2025

Ask Donna

What actually matters in this document.

Text

**THIS IS A CAPITAL CASE – EXECUTION SET FOR JUNE 25, 2025**

No. 24-7474

In the

Supreme Court of the United States

Richard Gerald Jordan,

Petitioner,

State of Mississippi,

Respondent.

On Petition for a Writ of Certiorari

from the Supreme Court of Mississippi

Reply Brief for Petitioner

Krissy C. Nobile

Counsel of Record

S. Beth Windham

MISSISSIPPI OFFICE OF

CAPITAL POST-CONVICTION

COUNSEL

239 North Lamar Street

Suite 404

Jackson, MS 39201

(601) 359-5733

knobile@pcc.state.ms.us

bwindham@pcc.state.ms.us

TABLE OF CONTENTS

ARGUMENT ................................................................................................................................ 1

This Court Has Jurisdiction, and It Has Roundly Condemned State Courts for

Manipulating State Law to Avoid Providing a Forum for Federal Law Claims................... 1

II.

A Stay is Warranted............................................................................................................. 4

CONCLUSION ............................................................................................................................. 5

TABLE OF AUTHORITIES

CASES

Atkins v. Virginia,

536 U.S. 304 (2002) .................................................................................................................... 2

Barefoot v. Estelle,

463 U.S. 880 (1983) ..................................................................................................................... 4

Bell v. State,

66 So. 3d 90 (Miss. 2011) ............................................................................................................ 2

Carmell v. Texas,

529 U.S. 513 (2000) ................................................................................................................ 3, 4

Cruz v. Arizona,

598 U.S. 17 (2023)........................................................................................................................ 3

Dobbert v. Florida,

432 U.S. 282 (1977) ..................................................................................................................... 3

Fluker v. State,

170 So. 3d 471 (Miss. 2015) ......................................................................................................... 2

Ford v. Wainwright,

477 U.S. 399 (1986) ...................................................................................................................... 4

Howell v. State,

358 So. 3d 613 (Miss. 2023) .................................................................................................. 1, 2, 5

Ivy v. State,

731 So. 2d 601 (Miss. 1999).......................................................................................................... 3

Ronk v. State,

391 So. 3d 785 (Miss. 2024) ................................................................................................. 1, 2, 5

iii

ARGUMENT

Nothing in the State’s brief in opposition blunts Petitioner Richard Jordan’s case for

plenary review. The State goes out of its way to cast the Mississippi Supreme Court’s decision as

one resting only on state law grounds. But the problem is that the lower court’s decision, much like

the State’s brief here, manipulates state devices to dodge federal review of federal law. The Court’s

review is warranted.

This Court Has Jurisdiction, and It Has Roundly Condemned State Courts for

Manipulating State Law to Avoid Providing a Forum for Federal Law Claims.

The State’s primary argument for why the Court should not hear this claim is that

the state court “considered and rejected” the ex post facto claim previously. Opp. 9. That contention

proves too much. The state court did previously consider the issue—but now it has reversed course

on the very law it previously used to deny Jordan’s claim. See Howell v. State, 358 So. 3d 613, 620

(Miss. 2023) (Kitchens, P.J., dissenting and joined by P.J. King and J. Ishee) (discussing the Court’s

“harsh and unjustiﬁed departure from our precedent”). The state court’s decisions in Howell v.

State, 358 So. 3d 613 (Miss. 2023) and Ronk v. State, 391 So. 3d 785 (Miss. 2024) radically altered

the fundamentals of Mississippi law. As the State concedes, Howell and Ronk constitute a

“signiﬁcant change in [Mississippi] state law.”1

The State also agrees that Mississippi’s analysis for ex post facto claims turns on the

procedural or substantive nature of the law at issue. Howell, 358 So. 3d at 619 (Kitchens, P.J.,

dissenting) (“This Court has held consistently that statutes that are procedural and ameliorative

do not violate ex post facto prohibitions.”). Because Mississippi has modiﬁed its test for

1 See State Response Brief in Batiste v. Cain, U.S. District Court for the Northern District of

Mississippi, Case No. 1:22-cv-00108, [Doc. 71], p. 4.

determining what is a matter of substance, it consequently changes the court’s prior treatment of

Jordan’s ex post facto claim. Under the state-law exception for intervening decisions, the Mississippi

Supreme Court was obligated to address anew the federal ex post facto claim. Instead, it arbitrarily

denied review. That is precisely what gives way to a due process violation and federal review.

The state court’s bars are also anything but “ﬁrmly established and regularly

followed.” Opp. 11. As to the time bar, there is no time bar in cases that meet the intervening law

exception to statutory bars. This is best illustrated in Bell v. State, 66 So. 3d 90 (Miss. 2011), where

the Court granted post-conviction relief on the basis that Atkins v. Virginia, 536 U.S. 304 (2002)

was intervening law. The state court granted that relief eight years after Atkins was decided. The

Court in Bell held that “[n]oticeably absent from this statute is a time limitation in which to ﬁle a

second or successive application if such application meets one of the statutory exceptions.” Id. at

93; Fluker v. State, 170 So. 3d 471, 476 (Miss. 2015) (“It is true that, because the UPCCRA excepts

certain claims from this three-year statute of limitations, those claims have no statutory limitations

period.”).

It is also important that the cases cited by the State on pages 11-12 were decided before the

decisions in Howell v. State and Ronk v. State. The rationale invoked by the Court in Howell and

Ronk was in many ways revolutionary. This is so not only because of the decades of precedent the

cases overturned, but also because of the many areas of law impacted. The three dissenting Justices

in Howell forecasted the reverberations of the Court’s holding. Howell, 358 So. 3d at 619 (Kitchens,

P.J., dissenting) (“Today’s holding that the Legislature is capable of enacting nothing but

substantive laws can impact many areas of state law.”). This Court has reiterated that

“unforeseeable and unsupported state-court decision[s],” like the one here, “do[ ] not constitute

an adequate ground to preclude this Court’s review of a federal question.” Cruz v. Arizona, 598

U.S. 17, 26 (2023)

The State’s attempted merits analysis also falls short. The State begins by focusing

on the law at the time of Jordan’s crime. Opp. 16. And the State admits there was only one available

sentence for capital murder in January 1976—and that was a mandatory death penalty. What the

State never grapples with, though, is that the only available sentence was unconstitutional. Rather

than address this point, the State pivots and just says that it is “unclear how [ Jordan] could be

sentenced at all.” Opp. 19. But Mississippi already answered that question. Ivy v. State, 731 So. 2d

601, 603-04 (Miss. 1999) (“Following its decision in Furman [ ], the U.S. Supreme Court found

that Mississippi's statutory scheme for imposing the death penalty was unconstitutional.”); id.

(explaining that Ivy committed murder in 1973 and, “[s]ince the U.S. Supreme Court had declared

the death penalty portion of § 2217 unconstitutional, the only viable sentence at the time Ivy

committed the murder was life in prison”).

The State also relies almost entirely on Dobbert v. Florida, 432 U.S. 282 (1977). Opp. 18.

But the decision in Dobbert centered largely on the “fair warning” principle, which is no longer the

only guiding ex post facto principle. The Court in Dobbert reasoned that the statute in eﬀect at the

time of petitioner’s oﬀense indicated Florida’s view of the degree of punishment the state

legislature wished to impose for murder. Justice Stevens’ dissent in Dobbert criticized the majority

opinion for relying too heavily on that principle, explaining that “[f ]air warning cannot be the

touchstone” of ex post facto. 432 U.S. at 307 (Stevens, J., dissenting).

After Dobbert, Justice Stevens’ dissenting opinion on fair warning evolved into the majority

opinion in Carmell v. Texas, 529 U.S. 513 (2000). Justice Stevens’ majority opinion in Carmell

expressly recognizes that “[t]here is plainly a fundamental fairness interest [in prohibiting ex post

facto laws], even apart from any claim of reliance or notice[.]” Carmell, 529 U.S. at 523.

* * *

All in all, at the time of Richard Jordan’s oﬀense, there was no constitutional provision for

a death sentence in Mississippi. Furman had halted the death penalty shortly prior to Jordan’s

oﬀense, and the mandatory death penalty scheme created by Mississippi existing at the time of

Jordan’s oﬀense was unconstitutional and thus void. That Mississippi had a void and

unconstitutional statute providing for a mandatory death sentence in its dead-letter law at the time

of Jordan’s oﬀense does not cure Jordan’s ex post facto claim.

II.

A Stay is Warranted.

The State’s opposition to Jordan’s emergency application for stay is similarly ﬂawed. The

State boldly states in its response that Jordan “cannot show any likely merits success” but fails to

rebut Jordan’s strong showing of the “presence of substantial grounds upon which relief might be

granted.” Barefoot v. Estelle, 463 U.S. 880, 895 (1983). Opp. 21.

The State doubles down on its prior claim that Jordan is unlikely to suﬀer irreparable harm

absent a stay of his execution. Opp. 21; See also Opp 14. This makes no logical or legal sense, as

“execution is the most irremediable and unfathomable of penalties.” Ford v. Wainwright, 477 U.S.

399, 411 (1986).

The State attempts to argue execution does not cause harm where a petitioner’s “guilt is

not in question,” asking this Court to ignore his ex post facto claim and the State’s arbitrary evasion

of federal review in violation of Jordan’s due process rights. Opp. 21. Again, as Jordan has

previously stated, his “guilt or innocence is irrelevant to the equitable considerations attending

habeas relief, if the petitioner has demonstrated prejudicial constitutional error.” Thus, a

requirement of actual innocence is not a prerequisite to obtaining a stay for this Court to review a

meritorious constitutional claim.

The State’s claims about delay have already been dealt with in Jordan’s Emergency

Application for Stay, and Jordan will not beleaguer those points here. See Application for Stay 4-5.

The State avers that “[t]hree decades of litigation have not demonstrated constitutional

errors at that sentencing, in his state post-conviction proceedings or in his method of execution.”

Opp. 21. But Jordan is bringing his claims based on the intervening law of Howell and Ronk, which

the Mississippi Supreme Court handed down in 2023 and 2024, respectively. See Howell v. State,

358 So. 3d 613 (Miss. 2023); Ronk v. State, 391 So. 3d 785 (Miss. 2024). No court had the beneﬁt

of these cases and this seismic shift in Mississippi’s law before that time, and how that changes ex

post facto law in Mississippi. Nor could the courts foresee that this change would prevent

Mississippi state courts from adjudicating fundamental constitutional rights in post-conviction

where there is a statutory bar contained in the Act. Id.

Finally, the State is incorrect in claiming the “equities clearly favor the State” because “the

State is entitled to an assurance of ﬁnality.” Opp. 22 (internal citations omitted). As stated in

Jordan’s emergency application for stay, the State has delayed this execution around ﬁfty years

because they violated his constitutional rights in three (and Jordan submits four) separate trials.

See Application for Stay 7. The State is to blame for any delay—not Jordan.

CONCLUSION

Jordan’s petition is meritorious and should result in a grant of certiorari. This Court should

grant a stay so that it may fully address the important constitutional issue presented.

Dated: June 24, 2025

Respectfully submitted,