Emergency Application — Richard Gerald Jordan, Applicant v. Mississippi

Supreme Court briefJun 20, 2025

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

No. ______

No._______ (connected case – Petition for Certiorari)

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

EMERGENCY APPLICATION FOR STAY OF

EXECUTION

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

To the Honorable Samuel Alito, Associate Justice of the Supreme Court 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 Wednesday, June 25, 2025, at 6:00 p.m. Jordan filed a Petition for Writ of Certiorari on June

20, 2025, challenging the Mississippi Supreme Court’s inconsistent application of Mississippi law

to evade federal review of Jordan’s ex post facto claim and resulting violation of his due process

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

case.

PROCEDURAL BACKGROUND

Jordan was sentenced to death for a crime that occurred in January 1976, shortly after he

returned home from Vietnam. The only constitutional penalty available for the crime at that time

was imprisonment for life. Pet. 3. Accordingly, Jordan challenged his sentence arguing it violated

the Ex Post Facto Clause in 1978. See Jordan v. State, 365 So. 2d 1198, 1204 (Miss. 1978). The

Mississippi Supreme Court denied Jordan’s claim on the grounds that the change in state statute

was “procedural” rather than “substantive.” Id. (relying on Irving v. State, 361 So. 2d 1360 (Miss.

1978)).

Mississippi has now radically departed from years of precedent and held that all law enacted

by the Legislature, including Mississippi’s Uniform Post-Conviction Collateral Relief Act,

(“UPCCRA”) codified at Miss. Code Ann. §99-39-1, et seq., is substantive law. See Howell v. State,

358 So. 3d 613 (Miss. 2023); Ronk v. State, 391 So. 3d 785 (Miss. 2024). As a result, Jordan filed a

successive motion for post-conviction relief in the Mississippi Supreme Court arguing that Howell

and Ronk established that the reasoning the Mississippi Supreme Court originally used to deny

Jordan’s ex post fact claim was faulty. In a two-page order, a divided Mississippi Supreme Court

denied Jordan’s motion finding his ex post facto claim was “time-and successive writ barred” and

“barred by res judicata.” En Banc Order, at 1, Jordan v. State, No. 2024-DR-01272-SCT (May 1,

2025.) On rehearing, Jordan argued that the Court erred in applying the intervening decision

exception to Howell and Ronk, and that the statutory bars were unconstitutional as applied citing

Hathorne v. State, 376 So. 3d 1209 (Miss. 2023).

The Mississippi Supreme Court denied rehearing in a one sentence order. Petitioner timely

filed for a writ of certiorari to this Court on June 20, 2025.

The Mississippi Supreme Court has refused to apply the new classification that all law

passed by the Legislature is substantive to Jordan’s renewed challenge to his sentence under the ex

post facto clause. But if all law passed by the Mississippi legislature is indeed substantive, the

Mississippi Supreme Court should not be able to avoid federal review by simply falling back on an

application of statutory bars when it is inconvenient to grant relief.

REASONS FOR GRANTING THE STAY

Jordan respectfully asks this Court to stay his execution pending disposition of this case.

Due to the timing of the state court’s ruling, and Jordan’s impending execution date, this Court

would be unable to consider his petition in the normal course without the need for a stay. Further,

a stay of execution is necessary to permit the Court to resolve the case after briefing and argument

next Term.

A stay may be granted in certiorari proceedings when there is “a reasonable probability that

four members of the Court would consider the underlying issue sufficiently meritorious for the

grant of certiorari or the notation of probable jurisdiction; there must be a significant possibility of

reversal of the lower court’s decision; and there must be a likelihood that irreparable harm will

result if the decision is not stayed.” Barefoot v. Estelle, 463 U.S. 880, 895 (1983)(internal citations

and quotations omitted).

Federal courts evaluating a request for a stay also consider the petitioner’s likelihood of

success on the merits, the potential harm to the parties, and whether the prisoner has unduly

delayed bringing the claims. See Hill v. McDonough, 547 U.S. 573, 584 (2006); Nelson v. Campbell,

541 U.S. 637, 649–50 (2004).

In the context of certiorari proceedings, a petitioner must

demonstrate a reasonable probability that four Justices would vote to grant certiorari, a significant

likelihood that the lower court’s decision would be reversed, and a likelihood of irreparable harm

in the absence of a stay. See Barefoot, 463 U.S. at 895. In this case, each factor supports staying

Jordan’s execution.

PETITIONER HAS NOT DELAYED.

The Mississippi Supreme Court denied rehearing as to the denial of Jordan’s post-

conviction relief on June 12, 2025, after previously setting his execution date for June 25, 2025. At

the time the execution date was set, Jordan had (and still has) a petition for certiorari pending in

another matter before this Court; Jordan had the right to move for rehearing on this matter in the

Mississippi Supreme Court; and Jordan is the lead plaintiff in a Section 1983 action filed in federal

court challenging the constitutionality of Mississippi’s method of execution—making setting his

execution date contrary to the plain language of Mississippi law. See Miss. Code Ann. § 99-19-106

(“When judgment of death becomes final and a writ of certiorari to the United States Supreme

Court has been denied or the time for filing such petition has expired, the court shall set an

execution date…”); See also Pet. for Cert. in No. 24-959; See Jordan v. State, No. 2024-DR-0172SCT; and Jordan v. Cain, No. 3:15-cv295-HTW-LGI [Doc. 1].

The two decisions radically altering Mississippi law, Howell and Ronk, were handed down

by the Mississippi Supreme Court in 2023 and 2024. Jordan filed for relief based on the intervening

law in those cases only about four months after rehearing was denied in Ronk. See Ronk v. State,

No. 2021-DR-00269-SCT.

Jordan filed the instant petition for certiorari eight days after the Mississippi Supreme

Court denied his motion for rehearing. Unfortunately, due to the timing, this Court has no

conference day before the execution. Jordan should not be faulted for delay when his state postconviction motion was filed before the Mississippi Supreme Court set an execution date, and he

filed his petition for certiorari a little over a week after denial of the motion for rehearing.

II.

THERE IS A REASONABLE PROSPECT THAT THIS COURT WILL GRANT

CERTIORARI AND REVERSE.

The question raised in Jordan’s petition is meritorious and should result in a grant of

certiorari. Jordan’s case presents an important constitutional issue that deserves to be fully

addressed by the Court free from the constraints of a warrant.

As stated in Jordan’s petition, the death penalty was not a constitutionally viable

punishment at the time of Jordan’s offense in January 1976; the only constitutional penalty for any

classification of murder was imprisonment for life. Jordan originally launched a challenge of his

sentence based on the ex post facto clause in 1977 because the version of the capital murder statute

at the time of the crime was unconstitutional under Woodson v. North Carolina, 428 U.S. 280 (1976)

and its progeny. See Jordan v. State, 365 So. 2d 1198, 1204 (Miss. 1978). The Mississippi Supreme

Court rejected this claim, finding instead that the changes in the law were procedural and

ameliorative. Jordan, 365 So. 2d at 1198. Based on other constitutional deficiencies, however,

Jordan’s 1977 sentence was reversed. Jordan v. Watkins, 681 F. 2d 1067 (5th Cir. 1982).

In 2023 and 2024, Mississippi handed down two cases that upended Mississippi law and

post-conviction jurisprudence. In Howell, the Mississippi Supreme Court held that the UPCCRA’s

time limitation for filing initial post-conviction petitions was a matter for substantive law for the

legislature since it can “only enact substantive law.” Howell, 358 So. 3d at 615. The next year Ronk

took this rationale a step further and held that all the procedural bars in the UPCCRA are

substantive law—relying again on the concept that the “Legislature only can enact substantive

law.” Ronk, 391 So. 3d at 795. Howell and Ronk transform law that was once considered to be

procedural to be substantive. See 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.”).

But rather than addressing Jordan’s ex post facto claim on the merits based on the intervening

exception to Mississippi’s PCR Act, the Mississippi Supreme Court avoided federal review by

relying on the bars contained in the statute, effectively denying Jordan due process. See En Banc

Order, Jordan v. State, No. 2024-DR-01272-SCT (May 1, 2025). Indeed, arbitrary denial of an

available state court forum to adjudicate a federal constitutional claim violates due process. “A state

court may not deny a federal right, when the parties and controversy are properly before it, in the

absence of ‘valid excuse.’” Howlett v. Rose, 496 U.S. 356, 369 (1990) (quoting Douglas v. New York,

N. H. & H. R. Co., 279 U.S. 377, 387-388 (1929) (Holmes, J.)). Mississippi has opened its postconviction forum to reviewing all federal claims, and the state court here arbitrarily shut the door

on Jordan’s federal ex post facto claim.

III.

JORDAN WILL BE IRREPARABLY HARMED IN THE ABSENCE OF A STAY OF

EXECUTION, AND THE BALANCE OF EQUITIES AND PUBLIC INTEREST

SUPPORT A STAY.

Jordan will suffer irreparable harm if his execution is allowed to go forward as he would be

executed without being able to litigate his claim that his due process rights were violated when

Mississippi refused to consider his ex post facto claim on the merits after intervening law. It has

long been recognized that “execution is the most irremediable and unfathomable of penalties.”

Ford v. Wainwright, 477 U.S. 399, 411 (1986).

Additionally, a stay of execution is necessary to facilitate a thorough and meaningful review,

protecting that same due process right. The fundamental requirement of due process is the

opportunity to be heard “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo,

380 U.S. 545, 552 (1965) (internal citations and quotations omitted). The issue present in the

instant case requires appellate review that is not truncated by the exigencies of an imminent

execution.

The State will not be comparably harmed by granting a stay. The State has delayed almost

fifty years in carrying out Jordan’s execution rendering cries for finality false. Further, public

interest has a stake in whether a state may ignore settled precedent and inconsistently apply state

procedure to avoid federal review of constitutional claims. In addition, the irreversible nature of

the death penalty frequently supports granting a stay. “[A] death sentence cannot begin to be

carried out by the state while substantial legal issues remain outstanding.” Barefoot, 436 U.S. at 888.

Should this Court grant the request for a stay and review of the underlying petition, there is a

significant possibility of the lower court’s reversal. This Court’s intervention is urgently needed to

prevent Jordan’s imminent execution since the Mississippi Supreme Court has refused to enforce

Jordan’s due process rights and review his ex post facto claim.

CONCLUSION

Jordan asks the Court to grant his application for a stay of his June 25, 2025 execution to

address the compelling constitutional question in his case on the merits.

Dated: June 20, 2025

Respectfully submitted,