Emergency Application — Richard Gerald Jordan, Applicant v. Mississippi

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

No. 25A_

No. 24-959 (connected case)

In the

Supreme Court of the United States

RICHARD GERALD JORDAN,

Petitioner,

v.

STATE OF MISSISSIPPI.

Respondent.

On Petition for Writ of Certiorari

to the Mississippi Supreme Court

EMERGENCY APPLICATION FOR STAY OF EXECUTION

Krissy C. Nobile

S. Beth Windham

MISSISSIPPI OFFICE OF CAPITAL POSTCONVICTION COUNSEL

239 N. Lamar Street

Suite 404

Jackson, MS 39201

(605) 359-5733

knobile@pcc.state.ms.us

Donald B. Verrilli, Jr.

Counsel of Record

Ginger D. Anders

Taylor Gleichauf

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Avenue, NW

Suite 500E

Washington, D.C. 20001

(202) 220-1100

Donald.Verrilli@mto.com

Adeel Mohammadi

MUNGER, TOLLES & OLSON LLP

350 S. Grand Ave., 50th Floor

Los Angeles, CA 90071

(213) 683-9543

Adeel.Mohammadi@mto.com

To the Honorable Samuel A. Alito, Jr., Associate Justice of the United States and Circuit

Justice for the Fifth Circuit:

The State of Mississippi has scheduled the execution of Petitioner Richard Gerald Jordan

for June 25, 2025. On March 3, 2025, Petitioner filed a petition for a writ of certiorari (No. 24959) challenging the constitutionality of his death sentence under Ake v. Oklahoma, 470 U.S. 68

(1985), and McWilliams v. Dunn, 582 U.S. 183 (2017).

Instead of receiving the expert

assistance to which Ake and McWilliams entitled him, McWilliams, 582 U.S. at 186—that is, the

assistance of an expert “sufficiently available to the defense” to assist in evaluating and

preparing a mitigation case based on Petitioner’s mental condition—Petitioner was examined by

a psychiatrist whose report was provided to the prosecution and then used against Petitioner

during his sentencing proceedings. After McWilliams clarified that Ake required that Petitioner

be assisted by an expert independent of the prosecution, Petitioner filed a successor

postconviction petition in Mississippi state court, invoking the State’s rules permitting such

petitions when there has been an intervening change in the law. Miss. Code Ann. § 99-39-27(9).

Despite McWilliams’ clarification that States like Mississippi had applied an impermissibly

narrow understanding of Ake, the Mississippi Supreme Court denied relief in a bare-bones order

that departed from that court’s consistent recognition that such clarifications qualify for the state

intervening-law exception.

Just as in Cruz v. Arizona, 598 U.S. 17, 28-29 (2023), the

Mississippi Supreme Court has refused to apply governing precedent of this Court—which

establishes that Petitioner’s death sentence was obtained in clear violation of his due process

rights—despite the absence of any adequate and independent state procedural bar to doing so.

Certiorari is manifestly warranted.

This Court will consider the petition on the conference of May 29, 2025. Petitioner

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respectfully requests a stay of execution pending the Court’s disposition of this case.

PROCEDURAL BACKGROUND

As explained in the pending petition, this case arises from a Mississippi capital

conviction and sentence that became final in 1998—after this Court decided Ake but before that

decision was clarified in McWilliams. See Pet. 13-16. McWilliams held that Ake “clearly

established that, when certain threshold criteria are met, the State must provide an indigent

defendant with access to a mental health expert who is sufficiently available to the defense and

independent from the prosecution to effectively ‘assist in [the] evaluation, preparation, and

presentation of the defense.” McWilliams, 582 U.S. at 186 (quoting Ake, 470 U.S. at 83). In so

holding, McWilliams clarified that state courts’ decisions affirming convictions and sentences

where the defendant did not receive that assistance were contrary to, or an unreasonable

application of, federal law. Id. at 199.

Before his sentencing proceeding, Petitioner moved for expert assistance in exploring a

mitigation defense based on severe symptoms of post-traumatic stress disorder (PTSD) arising

from his combat service in Vietnam. Pet. 8-10. Petitioner was examined by a psychiatrist, Dr.

Maggio, whose report was provided, over Petitioner’s objection, to the prosecution and used to

impeach a mitigation witness during the sentencing proceeding. Pet. 10-12. That report failed to

diagnose Petitioner’s PTSD—indeed, it is unclear whether the psychiatrist evaluated that

question at all—and instead (incorrectly) tarred him with antisocial personality disorder. Pet. 910. The prosecution used the report (which it never should have received) to its full advantage,

impeaching a defense witness and maintaining a plan for the majority of the proceedings to call

Dr. Maggio as its own rebuttal witness. And in the meantime, no mental health expert worked

with Petitioner to evaluate his mitigation strategy, assist in the preparation of his case at trial,

prepare Petitioner’s counsel to cross-examine the State’s witnesses, or otherwise assist in the

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preparation of Petitioner’s defense. As a direct result of the prosecution’s use of the report,

Petitioner was forced to truncate his mitigation case in multiple respects. It is thus crystal clear

that Petitioner did not receive the expert assistance to which Ake and McWilliams entitled him,

and that he was severely prejudiced in his ability to make a case in mitigation as a result.

In the wake of McWilliams, Petitioner filed a successive motion for postconviction relief

in the Mississippi Supreme Court. His motion presented the claim that under Ake, as clarified by

McWilliams, he had been denied due process because the court’s order appointing an expert

required that the resulting evaluation be shared simultaneously with the prosecution, which then

used it against him.

The Mississippi Supreme Court refused to recognize McWilliams’ holding that Ake

entitles a defendant to an expert “sufficiently available to the defense” to assist in evaluating,

preparing, and presenting a defense based on the defendant’s mental condition. The court denied

Petitioner relief in a four-page order on the grounds that it was barred as a successive writ, barred

by the doctrine of res judicata, and subject to the one-year limitations period for capital cases.

Pet. App. 2a.

In that court’s view, the “psychiatric examiner’s report was the subject of

[Petitioner]’s direct appeal, post-conviction, and habeas corpus proceedings,” thus any argument

based on the report, even if based on the (later issued) McWilliams, was “barred by res judicata.”

Pet. App. 3a. McWilliams, the Mississippi Supreme Court held, did not qualify as an intervening

decision under state law sufficient to overcome those procedural bars because it did not “create a

new rule of law,” but instead “merely clarified and reinforced Ake.” Pet. App. 3a.

In his motion for rehearing, Petitioner invoked both federal and state law to support his

argument that he was entitled to the benefit of McWilliams. Under federal law, Petitioner cited

the rule of federal retroactivity articulated in Teague v. Lane, 489 U.S. 288 (1989), that a

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“petitioner is entitled to the benefit of a decision that is new if the law the new decision applies is

old.”

Pet. App. 58a (emphasis omitted).

He noted that Mississippi has established a

postconviction forum that is open to federal constitutional claims, and that Mississippi’s

postconviction mechanism for petitioners to rely on “intervening” decisions is an application of

Teague. Pet. App. 58a-59a, 70a. And Petitioner explained that because McWilliams applied the

settled rule of Ake, McWilliams must be applied to his case.

Petitioner also argued that he was entitled to the benefit of McWilliams under state law.

He argued that he satisfied Mississippi Code § 99-39-27(9), which provides that a petitioner may

seek postconviction relief if “there has been an intervening decision of the Supreme Court of

either the State of Mississippi or the United States that would have actually adversely affected

the outcome of his conviction or sentence.” Pet. App. 75a-76a. Petitioner explained that under

Mississippi law, a decision may qualify as intervening even when it does “not announce a new

decision . . . for purposes of the Teague test.” Nixon v. State, 641 So. 2d 751, 755 n.7 (Miss.

1994); see Pet. App. 76a-77a (collecting Mississippi cases). Petitioner argued that “[o]ld law is

always supposed to apply in state post-conviction proceedings, and the ‘newness’ of a legal

holding has always been measured against the way Mississippi courts ha[ve] enforced the federal

right.” Pet. App. 78a. Petitioner thus submitted that he qualified for relief under state law

because McWilliams “effected a marked change in Mississippi’s application of federal law.” Pet.

App. 79a.

That is, McWilliams established that Mississippi’s understanding of Ake was

unreasonably narrow—and that the trial court violated Ake in denying Petitioner the assistance of

an expert in preparing his defense.

With respect to timeliness, Petitioner pointed out that his petition could not have been

deemed untimely because there is no time limit for successor petitions that meet a statutory

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exception under Mississippi law. Pet. App. 79a n.6. (citing Bell v. State, 66 So. 3d 90, 91-93

(Miss. 2011)).

The Mississippi Supreme Court denied rehearing in a one-sentence order. Pet. App. 53a.

Petitioner timely filed a petition for a writ of certiorari in this Court on March 3, 2025.

At that time, no execution date had been set in this case. The State sought a thirty-day extension

of time, citing “competing obligations,” including a “pending motion[] to set execution” in this

very matter. Mot. to Extend Time at 1 (Mar. 13, 2025). Counsel for the State represented that

“[g]ranting” the extension would “not prejudice Jordan.” Id. at 2.

On May 1, 2025, a divided Mississippi Supreme Court granted the State’s motion to set

an execution date for Petitioner, notwithstanding the petition for a writ of certiorari pending

before this Court. En Banc Order at 1-2, Jordan v. Mississippi, 1998-DP-901-SCT (Miss. May

1, 2025); see Opp. at 13. That court set “execution of the death sentence imposed on” Petitioner

for “Wednesday, June 25, 2025, at 6:00 p.m. C.D.T., or as soon as possible thereafter within the

next twenty-four (24) hours.” En Banc Order at 2, Jordan, 1998-DP-901-SCT.

On May 7, 2025, the State filed a brief in opposition to certiorari. In order to expedite

this Court’s consideration of the petition, Petitioner waived the 14-day waiting period for

distribution of the petition pursuant to Rule 15.5. The petition was distributed (along with

Petitioner’s reply in support of certiorari) on the next possible distribution date, May 13.

REASONS FOR GRANTING THE STAY

Petitioner respectfully seeks a stay of execution pending the disposition of this case. Although this Court likely could consider Petitioner’s certiorari petition in the normal course without the need for a stay, if this Court were to grant the petition, a stay of execution would be necessary to permit the Court to resolve the case after briefing and argument next Term.

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A stay of execution is warranted where there is a “presence of substantial grounds upon

which relief might be granted.” Barefoot v. Estelle, 463 U.S. 880, 895 (1983). To decide

whether a stay is warranted, federal courts consider the petitioner’s likelihood of success on the

merits, the relative harm to the parties, and the extent to which the prisoner has delayed his or her

claims. See Hill v. McDonough, 547 U.S. 573, 584 (2006); Nelson v. Campbell, 541 U.S. 637,

649-650 (2004). In certiorari proceedings, a petitioner must show a reasonable probability that

four members of this Court would vote to grant certiorari, that there is a significant likelihood of

reversal of the lower court’s decision, and a likelihood of irreparable harm absent a grant of certiorari. See Barefoot, 463 U.S. at 895. Here, the relevant factors all weigh in favor of staying

Petitioner’s execution.

I.

THERE IS A REASONABLE PROSPECT THAT THIS COURT WILL GRANT

CERTIORARI AND REVERSE THE MISSISSIPPI SUPREME COURT’S DECISION.

Petitioner’s petition for a writ of certiorari has a substantial likelihood of success.

Just two terms ago, this Court reaffirmed that States may not avoid giving effect to the

constitutional decisions of this Court by applying procedural rules governing the availability of

postconviction relief in an inconsistent manner that prejudices the assertion of federal constitutional claims. See Cruz, 598 U.S. at 26-28. In Cruz, petitioner Cruz was sentenced in the period

between Simmons v. South Carolina, 512 U.S. 154 (1994), and Lynch v. Arizona, 578 U.S. 613

(2016) (per curiam). Lynch clarified that the Arizona Supreme Court had erred in its narrow application of Simmons. After Lynch was decided, Cruz sought postconviction relief requesting

relief under Simmons and Lynch, given Lynch’s clarification that Arizona courts were misapplying Simmons. Cruz, 598 U.S. at 24-25. The Arizona Supreme Court denied Cruz relief pursuant

to a state procedural rule that allowed prisoners to benefit only from intervening decisions that

mark a “significant change” in the law. Id. In its view, Lynch was not a “significant change” in

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the law because Simmons already was “clearly established at the time of Cruz’s trial . . . despite

the misapplication of that law by the Arizona courts.” Id. at 25 (citing State v. Cruz, 487 P.3d

991, 994 (Ariz. 2021)). And the state high court reached that conclusion even though in prior

cases it had “repeatedly held that an overruling of precedent is a significant change in the law.”

Id. at 20 (emphasis added). Against that backdrop, this Court held that the Arizona Supreme

Court’s decision was “unprecedented and unforeseeable,” not “firmly established and regularly

followed,” and thus was not “adequate to foreclose review of a federal claim.” Id. at 32 (citation

omitted).

The facts of this case mirror those of Cruz. The Mississippi Supreme Court denied Petitioner relief, holding that because McWilliams was not a new rule, but instead a clarification of

Ake, it was not an “intervening decision” for purposes of state law. Pet. App. 2a-3a. But just

like Lynch, McWilliams established that state courts had misapplied Ake by refusing to provide

defendants with an expert sufficiently independent of the prosecution to assist in the evaluation,

preparation, and presentation of a mental condition-related defense. And much like in Cruz, the

Mississippi Supreme Court’s dismissal of McWilliams as a mere clarification not entitled to intervening-law treatment runs counter to a long line of Mississippi cases. Beginning with Gilliard v. State, 614 So. 2d 370 (Miss. 1992), the Mississippi Supreme Court has made clear that

decisions that do not “break new ground” for purposes of Teague, are still properly considered

“intervening decisions” for state procedural-bar purposes if the petitioner demonstrates that the

intervening decision would have changed the outcome of his sentence. Id. at 374-375.

Gilliard concerned this Court’s decisions in Maynard v. Cartwright, 486 U.S. 356

(1988), and Clemons v. Mississippi, 494 U.S. 738 (1990). Neither of those two decisions announced a “new rule” under Teague. See Gilliard, 614 So.2d at 374 (citing Stringer v. Black,

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503 U.S. 222, 228-229 (1992)). Yet the Mississippi Supreme Court has “consistently treated

Clemons claims as exceptions to the procedural bar rule, under the intervening decision proviso

of the statute,” that is, Mississippi Code § 99-39-27(9). King v. State, 656 So. 2d 1168, 1173

(Miss. 1995) (emphasis added) (citing five Mississippi Supreme Court decisions, including

Gillard); see also Nixon, 641 So. 2d at 755 n.7. Indeed, any other rule would create an unacceptable Catch-22. If, as the Mississippi Supreme Court held in this case, the intervening-law

exception applies only to decisions of this Court that adopt new rules of constitutional law, then

the exception will never apply because new rules of constitutional law may not be the basis for

postconviction relief under Mississippi law. See Pet. 27-28; Cruz, 598 U.S. at 28-29.

Thus, like in Cruz, unbroken Mississippi precedent makes clear that Mississippi’s application of Mississippi Code § 99-39-27(9) below was “the opposite of firmly established and regularly followed.” Cruz, 598 U.S. at 28. To the contrary, the Mississippi Supreme Court has applied the successive petition bar in a manner that blatantly “discriminate[s] against claims of federal rights” and therefore cannot preclude review by this Court. Walker v. Martin, 562 U.S. 307,

321 (2011); cf. Testa v. Katt, 330 U.S. 386, 394 (1947). The petition for a writ of certiorari is

thus likely to be granted for the same reasons that certiorari was granted in Cruz.

There is also a reasonable prospect of certiorari, and success on the merits, with respect

to Petitioner’s claim that his due process rights were violated. As detailed in the petition, Petitioner was not afforded the assistance of an independent mental health expert as Ake requires.

See Pet. 19-22. Petitioner sought independent expert mental health assistance in order to explore

potential mitigating evidence that he could introduce during the sentencing phase of his trial—

including the fact that he suffered from PTSD as a result of his combat service in the Vietnam

War. Instead of providing an expert who would be “sufficiently available to the defense and in-

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dependent from the prosecution,” McWilliams, 582 U.S. at 197, the trial court made a series of

decisions that deprived Petitioner of constitutionally sufficient mental health expertise in the

preparation of his mitigation defense.

For example, the trial court ordered, over Petitioner’s objection, that the prosecution receive the results of any psychiatric examination, regardless of whether the defense decided to

introduce that report into evidence. Pet. 20-21. The trial court then permitted the prosecution to

use Dr. Maggio’s report to impeach one of Petitioner’s mitigation witnesses and refused to preclude the prosecution from offering Dr. Maggio’s testimony in rebuttal. Pet. at 21. Petitioner

was thus forced to forego calling two scheduled mitigation witnesses that would have testified

about Petitioner’s service in Vietnam and changes they observed in his personality upon his return. Pet. at 21. The jury therefore never heard testimony about Petitioner’s PTSD—through

any expert, or even through lay mitigation witnesses. Pet. at 21.

Throughout this process, no expert “helped the defense evaluate [Dr. Maggio’s] report,”

explore further routes for presenting mitigation evidence, or “translate” the medical assessments

“into a legal strategy.” McWilliams, 582 U.S. at 199. Nor did any expert assist Petitioner in preparing a defense related to his PTSD; to the contrary, in one unsupported half-sentence Dr. Maggio asserted that there was “no clinical evidence” to support PTSD symptoms, though subsequent

experts have vehemently disagreed with that conclusion. See Pet. 21. And no expert assisted the

defense in preparing direct or cross-examination, see McWilliams, 582 U.S. at 199; in fact, the

prosecution was prepared to offer Dr. Maggio’s testimony to rebut the testimony of Petitioner’s

mitigation witnesses. It is difficult to imagine a more stark violation of Ake and McWilliams.

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II.

PETITIONER WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF A

STAY OF EXECUTION, AND THE BALANCE OF EQUITIES AND PUBLIC INTEREST SUPPORT A STAY.

If this execution is not stayed pending disposition of this case, Petitioner will undeniably

suffer irreparable harm. Petitioner would be executed without the opportunity to fully litigate his

meritorious claim that his death sentence was imposed in violation of Ake and McWilliams. This

is an “irremediable” harm because “execution is the most irremediable and unfathomable of penalties.” Ford v. Wainwright, 477 U.S. 399, 411 (1986).

Moreover, allowing the government to execute Petitioner while his petition is pending

risks “effectively depriv[ing] this Court of jurisdiction.” Garrison v. Hudson, 468 U.S. 1301,

1302 (1984) (Burger, C.J., in chambers). Because the “normal course of appellate review might

otherwise cause the case to become moot,’ . . . issuance of a stay is warranted.” Id. at 1302

(quoting In re Bart, 82 S. Ct. 675, 676 (1962) (Warren, C.J., in chambers)).

In contrast, granting a stay will not comparably harm the State. The State’s interest in finality is at its nadir here. This Court’s binding precedent has established that the state courts

misapplied federal law in sentencing Petitioner to death after denying him the expert assistance

to which due process entitles him—yet the Mississippi Supreme Court has refused to

acknowledge the force of that precedent. The Mississippi Supreme Court has thus flouted the

supremacy of federal law twice over. It refused to enforce Petitioner’s clearly established due

process rights. And, like the Arizona Supreme Court in Cruz, it refused to apply established federal constitutional law in a state postconviction proceeding in the absence of any adequate and

independent state procedural bar to doing so. Granting a stay will therefore permit Petitioner to

vindicate the compelling public interest in the supremacy of federal law.

Moreover, Petitioner has exercised diligence in presenting his claim. That claim could

not have been presented in earlier litigation, as it rests on this Court’s 2017 decision in

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McWilliams, and Petitioner fully complied with Mississippi’s rules concerning successor petitions that meet a statutory exception under Mississippi law. See Pet. 16. 1 Further, Petitioner expeditiously sought certiorari, at a time when doing so would not have required a stay of execution to enable this Court to resolve the case in the normal course. Petitioner cannot be faulted for

the State’s decision to seek an execution date that would prematurely cut off this Court’s opportunity to review the state courts’ refusal to follow this Court’s precedents. In those circumstances, the balance of equities and the public interest manifestly support issuance of a stay of execution.

III.

CONCLUSION

The application for a stay of execution should be granted.

Dated: May 21, 2025

Respectfully submitted,

Krissy C. Nobile

S. Beth Windham

MISSISSIPPI OFFICE OF CAPITAL POSTCONVICTION COUNSEL

239 N. Lamar Street

Suite 404

Jackson, MS 39201

(605) 359-5733

knobile@pcc.state.ms.us

bwinham@pcc.state.ms.us

/s/ Donald B. Verrilli, Jr.

Donald B. Verrilli, Jr.

Counsel of Record

Ginger D. Anders

Taylor Gleichauf

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500E

Washington, D.C. 20001

(202) 220-1100

Donald.Verrilli@mto.com

Ginger.Anders@mto.com

Taylor.Gleichauf@mto.com

Adeel Mohammadi

MUNGER, TOLLES & OLSON LLP

350 S. Grand Ave., 50th Floor

Los Angeles, CA 90071

(213) 683-9543

Adeel.Mohammadi@mto.com

1

The State faults (Opp. 11) Petitioner for not raising McWilliams in his third petition for postconviction relief, but that petition concerned the entirely unrelated issue of whether Mississippi’s

three-drug-lethal-injection protocol met the requirements of a state statute governing the first

drug that may be used.

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