Opposition Brief — Jordan v. Mississippi

Supreme Court, U.S.

(>) i ie}

JUN 24 1988

No. 87-1797 JOSEPH F. SPANIOL, JR.

CLERK

Iu The Supreme Court of the United States

October Germ, 1987

RICHARD GERALD JORDAN

PETITIONER

VERSUS

STATE OF MISSISSIPPI

RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSISSIPPI

BRIEF IN OPPOSITION

MIKE MOORE

ATTORNEY GENERAL

STATE OF MISSISSIPPI!

MARVIN L. WHITE, JR.

ASSISTANT ATTORNEY GENERAL

COUNSEL OF RECORD

OFFICE OF THE ATTORNEY GENERAL

POST OFFICE BOX 220

JACKSON, MISSISSIPP! 39205

TELEPHONE (601) 359-3680

COUNSEL FOR RESPONDENT

Me

QUESTIONS PRESENTED

ie Where petitioner's conviction for

capital murder became final on both direct

and collateral review in 1982 the principles

of res judicata do apply and the court below

properly so held, certiorari should be

denied.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED... ...2eeeeeeeees i

TABLE OF CONTENTS < cccccccecesesseece ii

TABLE OF AUTHORITIES. ccccccscsescsees iii

OPINIONS BRIAN ..< 6 640606 te act eee eee 1

JURISDICTIGN s.« «cna wu Se be eee eee een 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED....-cccccccecs 2

STATEMENT OF THE CASE... ccccccccccces 2

REASONS FOR DENYING THE WRIT........ 1

ARGUMENT. . <<a tse ee Seca ewe eee se iz

CORCTUBTION . «+4 6n8ebe ee eee eee 39

CERTIFICATE OF SERVICE... -ccccccccec 40

chia

TABLE OF AUTHORITIES

CASES PAGE:

Alien ¥. Hardy, 477 U.S. ,

an wales aera, 92 L..Bé.2c

ON Se ee eee 33

Brewer v. Williams, 430 U.S. 38%,

$7 S.Ct. 1232, 51 L.Ed.2d 24,25

EEE baraualate 30

Culberson v. State, 412 So.2d 1184

EE gS eee es eee eee eee 35

Culberson v. State, 456 So.2d 697

ee knee kb bc eeeeess 37

Edwards-v. Arizona, 451 U.S. 477,

igs &.Ct. 1860, 68 L.Ed.2d 378

EEE ES a 25

Edwards v. Thigpen, 433 So.2d 906

es ee rer 34

Engle v. Isaac, 456 U.S. 107,

San wees 2eee, 71 L.Bd.24a

ES rn 28

Enmund v. Florida, 458 U.S. 782

eee kk ewe hess acess 34

Evans v. State, 485 So.2d 276,

280-281 (Miss. 1986), cert. den.

wens - ,. 9O £.8G.28 (1966)... 38

Griffith v. Kentucky, 479 U.S. __,

Ane sae, 93 L.BA.284 649

EE SRE PS ae arate 31

In re Jordan, 390 So.2d 584

Ee 4,15

Jackson v. State, 337 So.2d 1242

a re LPP

-iii-

TABLE OF AUTHORITIES CONTD

CASES

Johnson v. Cabana, 818 F.2d 333

(Sth Cir. 1987), cert. den.

U.S. , 95 L.Ed.2d 861

0 ieee RS ere

Johnson v. State, 508 So.2d 1126

(MISS. 1987)... cece eeer rere vecees

Jordan v. Mississippi, 444 U.S.

$65. 100 &.Ce. 1735, 62 L.Ed.2d

LUD (1IGT9) ccccccccccesssescccsecs

Jordan v. Mississippi, 476 U.S.

1101, 106 3.Ct. 1942, 90

ee ee

Jordan v. State, 365 So.2d 1198,

1201-1203 (Miss. 1978), cert.

den., 444 U.S. 885, 100 S.Ct.

175, 62 L.Ed.2d 114 (1979).......

Jordan v. State, 464 So.2d 475

(MiSS. 1985)... cee eevee vere ccees

Jordan v. State, 518 So.2d 1186

REE COUP Laws a ten keke ke ee neces

Jordan v. Watkins, 681 F.2d 1967,

reh. den. sub. nom., Jordan

v. Thigpen, 688 F.2d 395 (5th

CRE. SERS) ccs as a riceeseeeseevsinne

Maine v. Moulton, 474 U.S. ,

106 S.Ct. 477, 88 L.Ed.2d 115

oo er ee ee ee

Massiah v. United States, 377 U.S.

201, 84 S.Ct. 199, 12 L.Ed.2d

-l oe) £5 op re er rrr Tre Sr ae eee

Michigan v. Jackson, 475 U.s. 625,

106 S.Ct. 1404, 89 L.Ed.2d

G31 (1986) .cccccccccccccccesesses

PAGE:

ye

24,39

4,15

24

19

4,14

23,32

18

1,20

ie Yi

25,32

30

30

22,29

wn

TABLE OF AUTHORITIES CONTD

CASES PAGE:

Michigan v. Mosley, 423 U.S. 96,

L097, 36 Bele. 221, 329. 46

Kiger P es cbs bs kek viene 24

Murray v. Carrier, 477 U.S. P

S08 8.02. ._, $1 &.88. 24 397

CRE oe hae 6 6k sa eblee vad 28

Read v. State, 430 So.2d 832

(A BEE cia Gee 36

Skipper v. South Carolina, 476

U.S. 1, 106 §.Ct. 1669, 90

eee CRO ob ie wb do Ge eo ews 19,20

smith v. Murray, 477 U.S. __,

166 2.0e... , 92 hi. Obed 434

25 UY ea a nr ee 28

United States v. Henry, 447 U.S.

100 S.Ct. 2183, 65 L.Ed.2d 115

[ ROO a Os oe ko kw ha obo Kak oe ks 30

Yates v. Akins, 546 (1988)......... 34

NO. 87-1797

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

RICHARD GERALD JORDAN,

Petitioner,

V.

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSISSIPPI

BRIEF IN OPPOSITION

Respondent, State of Mississippi,

respectfully prays that the Petition for

Writ of Certiorari to the Supreme Court of

the State of Mississippi be denied in this

case.

OPINION BELOW

The opinion of the Supreme Court of the

State of Mississippi is reported as Jordan

v. State, 518 So.2d 1186 (Miss. 1987). A

copy of the opinion is before the Court in

petitioner's Appendix to Petition for Writ

of Certiorari to the Supreme Court of

Mississippi at la-8a.

JURISDICTION

Petitioner seeks to invoke the

jurisdiction c this Court by way of a

Petition for Writ »f Certiorari through the

authority of 28 U.°:. SBS 1257(3). He fails

to do so.

CONSTITUTIONAL ~*~ :* ~TATUTORY

PROVISIONS i...-C\ED

Petitioner seeks to invoke the

provisions of the Constitution of the

United States, Amendments VI and XIV. He

also relies on Sections 99-39-21(3);

99-39-23(6); 99-39-27(9), Miss. Code Ann.

(Supp. 1984).

STATEMENT OF THE CASE

The petitioner, Richard Gerald Jordan,

was indicted on March 26, 1976, in the

Circuit Court of the First Judicial District

of Harrison County, Mississippi for

the January 13, 1976 kidnapping and murder

of Edwina Marter. On motion for change of

venue the matter was transferred to the

Circuit Court of Jackson County, Mississippi

where petitioner was tied and automatically

sentenced to death. Within the time for the

granting of a new trial the Mississippi

Supreme Court decided Jackson v. State, 337

So.2d 1242 (Miss. 1976), holding that

automatic imposition of the death penalty

was improper. The trial court granted

petitioner's motion for a new trial and

Jordan was again put to trial under the

guidelines imposed by the state court in

Jackson, supra, concerning jury sentencing.

Jordan was again convicted of capital murder

and sentenced to death, this time by the

jury in a bifurcated proceeding. The

Mississippi Supreme Court affirmed the

conviction and sentence on direct appeal and

rehearing was denied. Jordan v. State, 365

So.2d 1198 (Miss. 1979). Certiorari was

denied by this Court in Jordan _ v.

Mississippi, 444 U.S. 885, 100 S.Ct. 175, 62

L.Ed.2d 114 (1979). Petitioner then

petitioned the state supreme court for

post-conviction relief. This petition for

writ of error coram nobis was denied. In re

Jordan, 390 So.2d 584 (Miss. 1980).

On January 3, 1980, prior to filing his

petition for coram nobis relief, Jordan

filed a petition for writ of habeas corpus

in the United States District Court for the

Southern District of Mississippi. These

proceedings were stayed pending exhaustion

of all claims in the state courts. On March

19, 1981 the Honorable William Harold Cox,

United States District Judge, denied the

petition, and an appeal to the Court of

Appeals for the Fifth Circuit ensued. On

August 6, 1982, the Fifth Circuit affirmed

in part and reversed in part the decision of

the district court, vacating the sentence of

death. Thereafter a petition for rehearing

was denied. Jordan v. Watkins, 681 F.2d

1967, reh. den. sub. nom., Jordan vy.

Thigpen, 688 F.2d 395 (5th Cir. 1982).

Neither the state nor petitioner elected to

file a petition for writ of certiorari with

this Court.

A new sentencing hearing was held by the

Cizceuis Court of Harrison County,

Mississippi, First Judicial District and a

death sentence returned in proper form by

the jury on April 29, 1983. This marked the

third time that Jordan had been sentenced to

death. On automatic appeal to- the

Mississippi Supreme Court the sentence of

death was again affirmed on January 30,

1985. Rehearing was denied on March 13,

1985. Jordan vy. State, 464 $0.2d 475

(Miss. 1985).

Petitioner took a petition for

certiorari to this Court raising three

questions, none of them the present one.

This Court granted certiorari on 1986,

vacated the death sentence and remanded it

for reconsideration light of Skipper vv.

South Carolina, 476 U.S. 1 (1986). Jordan

v. Mississippi, 476 U.S. 1101 (1986).

On remand the court below ordered a new

trial on the issue of sentence. While the

remand matter this was pending, petitioner

filed a second post conviction petition

challenging his original conviction. This

was disposed of along with the _- remand

question in the opinion presently under

consideration. Jordan v. State, 518 So.2d

1186, 1189.

The facts reflected by the record show,

that on or about January 10, 1976, in Baton

Rouge, Louisiana, petitioner, traded a

shotgun for a .38-calibre revolver. Then

he traveled to Gulfport, Mississippi, and

obtained lodging at the Twin Star Motel

where he registered as "Jack Wilson." With

kidnapping in his mind, and using the

fictitious name of "Jack Wilson," Jordan

called the Gulf National Bank and expressed

a desire to speak to the commercial loan

officer. He was referred to Mr. Marter,

whose wife was soon to be Jordan's victim.

Perusal of the telephone directory revealed

to Jordan only one Gulfport listing of the

name “Marter." Having obtained the Marter

address from the directory, Jordan drove by

the Marter residence where several cars were

parked, including a Mercedes and a sports

car. After all but one of the cars was

driven away, Jordan dialed the Marter

residence telephone number and heard a

female's voice answer. Then he decided to

make his move.

Dressed in a sport coat, tie and knit

pants, and carrying a manila folder, Jordan

went to the Marter residence. He rang the

door bell and was greeted by Mrs. Marter

whom he told that his electrical company had

received information of defective circuit

breakers in the area which he was

investigating. Mrs. Marter admitted him

inside, whereupon he kidnapped Mrs. Marter

at gunpoint and took her away, leaving her

three-year-old son asleep in the house. At

his command, she drvve nim out into the

sparsley settled and wooded area of the

DeSoto National Park. They traveled down a

logging road and stopped. Jordan ordered

ner out of the car, telling her that she

would stay there with his partner until he

obtained money from her husband after which

he would release her. She became extremely

fearful when she discovered there was no

partner present. Petitioner forced Mrs

Marter onto her knees and shot her in the

back of the head.1l He then went to a

telephone and called Mr. Marter at the

bank. Demanding $25,000, Jordan stated:

"We have your wife . . ." and gave Marter

directions how to deliver the money on

Highway 49 north of Gulfport. Marter

quickly obtained the money, but his efforts

to drop it failed because he could not find

the coat (along side the highway) upon which

i Jordan, a self-described marksman,

claims he shot Marter in the back

of the head as she was running

away from him.

he was supposed to drop the money. Being

fearful of a trick on account of two

vehicles following Marter, Jordan decided

not to put the coat beside the highway.

Jordan took the .38-calibre revolver

(the. murder weapon) and threw it into the

Big Biloxi River, from which it was later

recovered after he revealed its location.

Before Mr. Marter again attempted _ to

deliver the money, as directed by a second

telephone call from Jordan, the money was

serialized and microfilmed by FBI officers

investigating the matter. During this

second telephone conversation between Jordan

and Mr. Marter, Jordan assured Marter that

his wife was all right, and demanded that

Marter drop the money on Interstate Highway

10. Marter Proceeded as Jordan directed;

this time he found the coat and dropped the

it Bilin

money on it. Two officers, Deputy Sheriff

Larkin Smith and FBI Agent Shepherd, having

been made aware of what was going on, where

positioned near the scene of the drop and

saw Jordan place a coat there. Soon they

saw him pick up the money, after which they

gave chase at high speed. During the chase,

Jordan rammed his car into the vehicle of

the officers, running them off the road.

They shot at his receeding car, but Jordan

continued his flight although his car was

rendered partially disabled in the ramming

episode. Jordan later abandoned his vehicle

at a shopping center, hid the money in some

nearby woods, proceeded to another shopping

center, and purchased a red jump-suit which

he donned before he left the store. He got

a taxi at the shopping center and told the

driver to take him to the Twin Star Motel.

Not knowing that Jordan was the man for whom

=i i=

a man hunt search was under way, the taxi

drive told Jordan that roadblocks were up

and that the officers were looking for

someone. En route to the motel, the taxi

was stopped. Jordan was identified from a

picture obtained by the FBI. The officer

arrested Jordan and turned him over to the

FBI. That afternoon, January 13, 1976,

Mrs. Marter's body was found. On the next

day a diver form the Gulfport Fire

Department retrieved the murder weapon from

the river.

REASONS FOR DENYING THE WRIT

Petitioner has presented no _ federal

question of sufficient substance that would

warrant the granting of this petition for

writ of certiorari.

ARGUMENT

In order to completely understand the

position of the state as to why this claim

i Din

petitioner continues to assert is barred by

the doctrine of res judacata and law of the

case and waiver we must '‘ock to the long

procedural history of this case. Petitioner

was indicted for capital murder on March 26,

1976, by the grand jury of the First

Judicial District of the Circuit Court of

Harrison County, Mississippi for the January

13, 1976 kidnapping and murder of Edwina

Marter. On motion for change of venue the

trial was transferred to the Circuit Court

of Jackson, Mississippi where petitioner was

tried and automatically sentenced to death.

Within the time for the granting of a new

trial, the Mississippi Supreme Court decided

the case of Jackson v. State, 337 So.2d 1242

(Miss. 1976) in response to the rulings in

Greqq v. Georgia,428 U.S. 153 (1976),

Protitt ..v, - Bigorige 496: .3.8. 242 tite),

Jurek v. Texas, 428 U.S. 262 (1976). The

at te

Mississippi Supreme held that automatic

imposition of the death penalty was not

permissible. The trial court granted

petitioner's motion for a new trial and

Jordan was again put to trial under the

guidelines for a bifurcated trial set forth

by the supreme court in Jackson. Jordan was

again convicted of capital murder and

sentenced to death, this time by the jury in

a separate sentencing hearing. Jordan first

raised the present issues concerning the

confession he gave at trial and the trial

court after an evidentiary hearing found the

confession to be free and voluntary. The

confession issue was next raised before the

Mississippi Supreme Court on direct appeal.

The court below addressed the issue and

found no error in admitting the confession.

Finding no other errors the conviction and

sentence were affirmed and a petition for

alé@=

rehearing was later denied. Jordan v.

State, 365 So.2d 1198 (Miss. 1979).

Petitioner next raised the question before

this Court in his petition for certiorari

‘taken from the affirmance on direct appeal.

Certiorari was denied by this Court in

Jordan v. Mississippi, 444 U.S. 885, 100

§$.Ct..175, 62 L.Ed.2d 114 (1979). After

denial of his petition for writ of

certiorari Jordan then filed a_- state

post-conviction petition in the form of an

application for writ of error coram nobis

with the court below. He did not raise the

confession issue in this post-conviction

action. His petition for writ of error

coram nobis was denied in a_e written

opinion. In re Jordan, 390 So.2d 584

(Miss. 1980).

Prior to filing the aforementioned

petition for writ of coram nobis, Jordan

-1S-

filed a federal petition for writ of habeas

corpus in the United States District Court

for the Southern District of Mississippi.

In this federal petition Jordan raised the

confession question. The federal court

stayed all proceedings pending the

exhaustion of all claims in the _ state

court. After the denial of the petition for

writ of error coram nobis by the state court

the federal district court reactivated the

federal habeas petition. On March 19, 1981

the United States District Judge, denied the

habeas petition, and an appeal was taken to

the Court of Appeals for the Fifth Circuit.

On August 6, 1982 the wifth Circuit affirmed

in part and reversed in part the decision of

the district court, vacating the sentence of

death. In affirming the denial of habeas as

to the conviction of capital murder the

Fifth Circuit decided the confession issue

até—

finding no error in the determination made

by the Mississippi Supreme Court or the

federal District Court in deciding the

issue. A petition for rehearing was filed

and later denied denied. Jordan v. Watkins,

681 F.2d 2067, reh. den. sub. nom., Jordan

v. Thigpen, 688 F.2d 395 (Sth Cir. 1982).

Neither the state nor the petitioner,

Jordan, filed a petition for writ of

certiorari with this Court. Jordan's

conviction for capital murder became final

at that point in 1982 and all the issues

pertaining to the conviction also became

final. Jordan accepted the ruling of the

Fifth Circuit when he did not appeal that

court's ruling on the confession issue.

Because of the vacation of the death

sentence by the Fifth Circuit, a new

sentencing hearing was held in the Circuit

Court for the First Judicial District of

ai Fa

———K—KKKKKK——

Harrison County and a death sentence was

returned in proper form by the jury on April

29, 1983. During this resentencing hearing

the confession issue was raised again. The

trial court held that the issue was res

judicata and the Fifth Circuit's ruling on

the issue was final. This sentence of death

marked the third time Jordan had _ been

sentenced on this charge. On automatic

appeal tho the Mississippi Supreme Court

petitioner again raised the question of the

confession. The court below agreeded with

the trial court that the issue was res

judicata and finding no other error affirmed

the sentence of death again on January 30,

1985, rehearing was denied .on March 13,

«&

1985. Jordan v. State, 464 So.2d 475

(Miss. 1985).

Petitioner then sought certiorari from

the affirmance of this denth sentence filing

tiie

his petition on May 13, 1985. Petitioner

raised three grounds for relief before this

Court in that petition. None of the three

questions presented to the Court involved

the confession issue. Petitioner's

statement in his petition that space

limitation prevented him from raising the

confession argument at that time is specious

and cannot excuse the failure to raise the

issue even if it had been a live and viable

Claim at the time. Petitioner again

accepted the resolution by the court below

that the issue had become final.

On May 5, 1986 this Court granted the

petition for writ of certiorari, vacated the

sentence of death and remanded the case to

the court below for reconsideration in light

of Skipper v. South Carolina, 476 U.S. 1,

106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). Jordan

v. Mississippi, 476 U.S. 1101, 106 S.Ct.

«39+

1942, 90 L.Ed.2d 352 (1986). On remand the

Court below ordered briefs be filed on the

Skipper issue. Briefs were filed and the

issue was joined.

On April 13, 1987 petitioner filed an

Application For Leave To File Motion To

Vacate And Set Aside Conviction with the

court below again raising the confession

issue. The state responded. On senotember

23, 1987 a unanimous court decided both the

Skipper issue and the post-conviction

motion, petition for rehearing was denied on

February 10, 1988. Jordan v. State, 518

So.2d 1186 (Miss. 1987). In reconsidering

the case in light of Skipper the court below

held that the case must be remanded another

sentencing hearing. In a separate

accompanying opinion deciding the

post-conviction motion, the court once again

held that it would not reconsider’ the

=a%O—

confession issue as it was res judicata.

In this opinion the court below recited the

procedural history of the case and

concluded:

We are of the opinion that

Jordan's conviction became final

in 1982 when the Fifth Circuit

upheld his conviction of capital

murder and he did not petition the

United States Supreme Court to

review that decision. We hold

that the question is res judicata

and is barred from relitigation.

518 So.2d at 1189.

Since 1982 the court below has consistently

held that the issue is settled. Petitioner

cannot overcome the procedural bars applied

to this issue simply by raising the issue

again at each stage of the litigation and

having the court below state that the issue

is closed and will not be relitigated.

There must be some finality and we would

submit that the issue is closed to further

litigation and has been since 1982. Both

a he

the doctrines of res judicata and waiver

apply here. The issue was litigated and

decided against petitioner in both state and

federal courts. Further petitioner has

waived any right to raise the issue again

when he accepted the disposition of the

issue by the Fifth Circuit in 1982 without

further appeal.

Petitioner attempted both in the court

below and attempts again here to excuse his

procedural waiver and overcome the bar of

res judicata by arguing that the decision in

Michigan v. Jackson, 475 U.S. 625, 106

S.Ct. 1404, 69 . B.84.24 - 832 (1986),

constitutes new law and excuses his failure

to raise the claim earlier and also

overcomes the bar of res judicata. The

court below held in Johnson v. State, 508

So.2d 1126 (Miss. 1987), that a claim raised

in a post-conviction context under Jackson

«24

was. barred. Later in the same case the

issue was presented to the Fifth Circuit in

Johnson v. Cabana, 818 F.2d 333 (5th Cir.

1987), cert. den. U.S. , 95 L.Ed.24

861 (1987). In addressing this contention

the Fifth Circuit held:

[Petitioner's counsel ] further

contend that Michigan v. Jackson,

0.8. , 106 S.Ct. 1404, 89

L.Ed.2d 631 (1986), constitutes

new law in this area which excuses

the failure to raise this conten-

tion previously. The state

responds that Jackson is not new

law, that it holds only that

counsel should be made available

after indictment and arraignment,

that Johnson had either been

indicted nor arraigned at the time

he confessed, that Johnson was not

arrested until after he confessed,

and that his confession was free

and voluntary and was_ properly

taken. We agree that Jackson did

not create a new rule of law.

Johnson's failure to raise the

issue ia an abuse of the writ.

[Emphasis added.] 818 F.2d at 344.

As stated above petitioner presented

this question on his first direct appeal and

“% a

had the question addressed and resolved

against him in the 1978 opinion of the court

below. Jordan v. State, 365 So.2d 1198,

1201-1203 (Miss. 1978). In its opinion the

court addressed the question both in a Fifth

and Sixth Amendment context relying on

Michigan v. Mosley, 423 U.S. 96, 109, 96

$.Ct. 321, 329, 46 &.88.2@ 323 {1975} anc

Brewer v. Williams, 430 U.S. 387, 97 S.Ct.

1232, 51 L.Ed.2d 424 (1977). In his

petition for certiorari from direct appeal

the issue was raised before this Court.

This Court did favor his claim with a grant

of certiorari on this issue. Jordan vv.

Mississippi, 444 U.S. 885, 100 S.Ct. 175, 62

L.Ed.2d 114 (1979).

When petitioner filed his first state

post-conviction challenging his conviction

and sentence he did not raise this issue

before the court below. This was the first

-24-

time he waived the issue and this default

alone would bar petitioner from relitigating

the issue further in state court as he

abandoned the issue when it could have and

and should been presented to the court

below.

In his federal habeas petition Jordan

again raised the issue before the district

court and was rebuffed. In its opinion

affirming the denial of relief the Fifth

Circuit Court of Appeals, in Jordan v.

Watkins, 681 F.2d 1067, 1070-1075 (Sth Cir.

1982), again addressed both the Fifth and

Sixth Amendment claims and found them to be

without merit. The Fifth Circuit relied on

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct.

1880, 68 L.Ed.2d 378 (1981) and Brewer vy.

Williams, supra, in deciding the claims

against the admission of the confession were

a«ZS—

meritless. Speaking to the Sixth Amendment

claim the circuit court held:

Appellant also argues that his

right to counsel under the sixth

and fourteenth amendments as

violated by his interrogation in

the absence of counsel after

adversary proceedings had

commenced. It is undisputed that

adversary proceedings had

commenced when the authorities

elicited the recordei confession.

"([Ojnce adversary proces ‘ings have

commenced against an i..-*vidual,

he has the right to legal

representation when the gcvernment

interrogates him." ‘Brewer v.

Williams, 430 U.S. 387, 401, 97

S.Ct. 1232; 32 “b. Be. 26: 426; .. 438

¢ (1977). This does not mean that

at that stage an accused cannot

waive his rights under the sixth

and fourteenth amendments. Id.,

430 U.S. at 405-406, 97 S.Ct. at

1243, 51 L.Ed.2d at 441. Rather,

it is "incumbent upon the

[prosecution] to prove an

intentional relinquishment of a

known right or privilege.'" id.,

430 U.S. at 404, 97 S.Ct. at 1242,

51 L.Ed.2d at 439. Based on the

facts and circumstances previously

discussed, we hold that the

prosecution met this strict

standard with respect to Jordan.

681 F.2d at 1075.

~~)

The issue was not addressed further in the

opinion on denial of the petition for

rehearing by the Fifth Circuit. It is most

important at this point to _ state the

petitioner did not challenge, in this Court,

the decision of the Fifth Circuit on the

confession issue. He accepted the decision

of the Fifth Circuit court by failing to

appeal the issue further thereby waiving the

claim for all time. The conviction for

capital murder become final in 1982 under

the doctrines of res judicata, law of the

case and further litigation is also barred

by the doctrine of waiver.

Petitioner cannot say that he did not

have «he iegal tools necessary to raise this

issue at that time. Just from the cases

cited by the court below on direct appeal

and the Fifth Circuit it is clear that the

Same and similar issues were being litigated

(

at the time of petitioner's direct appeal

and post-conviction proceedings in state and

federal court by other counsel. The fact

that he had the legal tools available to him

at the time to raise the claim demonstrates

that there is no reason for the procedural

default of abandoning the claim. The

language found in Engle v. Isaac, 456 U.S.

107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982),

is worth repetition here:

We have long recognized, however,

that the Constitution guarantees

criminal defendants, only a fair

trial and a competent attorney.

It does not insure that defense

counsel will recognize and raise

every conceivable constitutional

Claim. Where the basis of a

constitutional claim is available,

and other defense counsel have

perceived and litigated that

claim, the demands of comity and

finality counsel against labeling

alleged unawareness of the object-

tion as cause for a procedural

default.

71 L.Ed.2d at 804.

»28~

Murray v. Carrier, 477 U.S. , £06 §.CE.

__, 91 L.Ed. 2d 397 (1986); Smith v. Murray,

477 0.8... 106 8.Ct...._ , 91 &.B6.08 4m

(1986).

Petitioner again raised the issue on

direct appeal from his resentencing.

Consistent with the present ruling the court

below quoted from the Fifth Circuit's

opinion and held:

We are of the opinion that the

State met its burden with respect

to Jordan and that the question

is now res judicata.

464 So. at 480.

Petitioner again waived the issue by not

raising it in his petition for certiorari

from this resentencing direct appeal. The

issue is barred from relitigation.

As we have pointed out, both the court

below and the Fifth Circ

»

Michigan v. Jackson, 4s not new law. The

uit have held that

>

n”

real question before this court was answered

by the court below and the Fifth Circuit

years ago. The question presented hear is

actually whether or not Jordan validly

waived his right to counsel ,at_~ the

post-arraignment custoda. *nterrogation.

Jackson does not stand for .re ~wroposition

that once counsel has been appointed it can

never be waived. In fact Jackson pointed

out that Maine v. Moulton, 474 U.S. , 106

S.Ct. 477, 88 £L.Ed.2d 115 (1985); United

States v. Henry, 447 U.S. 100 S.Ct. 2183, 65

L.Ed.2d 115 (1980); Brewer v. Williams, 430

U.S. 387, 97 S.Ct. 1232, S51 L-Ed.2a 424

(1977) and Massiah v. United States, 377

U.S. 201, 84 S.Ct. 199, 12 L.Ed.2d 246

(1964), were all cases dealing with the

question of whether "respondents validly

waived their right to counsel at the

postarraignment custodial interrogations."

=

89 L.Ed.2d at 638. See also: 98 L.Ed.2d at

642, fn.9. The issue was addressed and

resolved by the court below and the Fifth

Circuit. It cannot be relitigated.

Further, even if we were to consider

Jackson as new law, it would not be applied

retroactively to this case under the recent

precedent dealing with new law. Petitioner

relied on the decision in Griffith v.

Kentucky, 479 U.S. . $676.08. , B83

L.Ed.2d 649 (1987), to state that the claim

he makes under Jackson, should be

considered. However Griffith, clearly states

that it applies to litigation pending on

direct state or federal review or not yet

final when the decision of the United States

Supreme Court is handed down. The Court

stated:

We therefore hold that a new rule

for the conduct of criminal

prosecutions is to be applied

mm be

4

¥

:

=

ae

%

Doe we eo EL Sok

retroactively to all cases, state

or federal pending on direct

review or not yet final, with no

exception for cases in which the

new rule constitutes a "clear

break" with the past.

93 L.Ed. 2d at 661.

Continuing, this Court defined the word

"final" as follows:

6. By "final," we mean a case in

which a judgment of conviction has

been rendered, the availability of

appeal exhausted, and the time for

a petition for certiorari elapsed

or a petition for certiorari

finally denied. (Citations

omitted. ]

93 1.84.24 et 687, fa. 6.

The issue at bar has been litigated and

direct review of the issue became final in

1979, when this Court’ finally denied

certiorari. Jordan v. State, 365 So.2d

1198, 1201-1203 (Miss. 1978), cert. den.,

444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114

(1979). If that alone were not sufficient,

the ruling of the United S*=-es Court of

Appeals for the Fifth Circuit in Jordan v.

Watkins, 681 F.2d 1067, 1070-1075 (5th Cir.

1982), clearly forecloses any further

litigation of the issue. Federal review of

the issue is now final since Jordan allowed

the Fifth Circuit's decision to stand

without a petition for certiorari being

filed from that ruling. Petitioner was in

no way restrained from filing a petition

from certiorari from that ruling with this

Court and chose not to do so. The time for

filing such a petition has long expired.

Clearly the issue was fully litigated

according to the law in existence at the

time and the issue is res judicata. The

rational of Griffith and Allen v. Harcy, 477

U.S. , 106 S.Ct. 2872, 92 L.Ed.2d 199

(1986), is to be applied to all criminal

cases. Clearly the decisions rendered by

the court below and Fifth Circuit regarding

-33-

the admissibility of the confession was

final at the time of this Court's decision

in Jackson. We submit that the issue has

been final for eight (8) years, since the

denial of certiorari on direct review where

this question was raised. Yates v. Akins,

546 (1988), does not change this position.

Further Yates can be distinguished in that

the Mississippi Supreme Court has placed

limits on the issues it will entertain in

collateral proceedings and has not addressed

the merits of the federal claim in any

proceeding since 1979. The issue of waiver

of the right to counsel was decided at that

time and the issue is closed.

Petitioner's claim that the procedural

bar is not regularly applied by the court

below is easily distinguishable from the

case at bar. Neither cited case was in the

Same procedural position as the case at

Te

bar. In Fdwards v. Thigpen, 433 So.2d 906

(Miss. 1983), the Mississippi Supreme Court

considered the intervening decision of

Enmund v. Florida, 458 U.S. 782 (1982), ina

post-conviction context, the court expressed

some confusion whether the issue had been

raised or could have been answered in the

opinion on direct review. However that

post-conviction petition was Edwards' first

post-conviction pleading and the issue had

not been resolved by a federal court of

appeals as in this case. The decision in

Enmund was a clear departure from the

precedent as it had existed at the time.

Reliance on Culberson v. State, 412

So.2d 1184 (Miss. 1982), is likewise

misplaced. The question considered by the

court below in Culberson was one concerning

ineffective assistance of counsel. The

court below has never applied the procedural

-35-

EE

bar

rule to the issue of ineffective

assistance of counsel until there has been a

meaningful opportunity to raise such

claim. As stated in Read v. State,

So.2d 832 (Miss. 1983):

This Court has never heretofore

applied the procedural bar rule

where a convicted defendant has on

direct appeal urged ineffective

assistance of counsel. This is

true even though this Court has

been considering the ineffective

assistance of counsel issue for

years, apparently without anyone

suggesting that the point had to

be procedurally preserved in the

trial court. [citations omitted. ]

In most of these cases the claim

of ineffective assistance of

counsel was rejected on its

merits. But because the issue in

each case was treated on the

merits, although occasionally

cursorily, these cases necessarily

stand for the proposition that no

procedural bar rule has heretofore

been applied.

In addition to the direct appeal

cases cited above, we not that

right to counsel claims have also

been asserted via proper

post-conviction proceedings, even

thought the point was not

="

a

430

preserved at trial and not raised

on direct appeal. See Nelson v.

Tullos, 323 So.2d 539, 543 (Miss.

1975); Berry v. State, 345 So.2d

613 (Miss. 1977).

430 So.2d at 838.

Abiding by its long standing policy of

treating ineffective assistance of

counsel claims made on direct appeal and in

a first post-conviction proceeding

differently than other claims when applying

the procedural bars the court below

considered the claim of ineffective

assistance of counsel that could not be

determined fromt he record on direct

appeal and granted Culberson an evidentiary

hearing on the issue of whether he had been

denied the right to testify in his own

behalf. After a hearing in the trial court

on this matter relief was denied again and

that denial was affirmed. Culberson v.

State, 456 So.2d 697 (Miss. 1984).

a t<

|

Culberson was granted no relief only an

evidentiary hearing. The case at bar is

different in that the petition raising the

issue is a successive post-conviction

petition attempting to relitigate a matter

by raising an issue that has been

previously decided. On successive petitions

the court below has held even the issue of

ineffective assistance of counsel to be

barred. Johnson v. State, 508 S636 1126,

1128-1129 (Miss. 1987); Evans Vv. State, 485

So.2d 276, 280-281 (Miss. 1986), cert. den.

U.S. , 90 L.Ed.2d (1986).

-38-

CONCLUSION

For the foregoing reasons, respondents

respectfully submit that the petition for

writ of certiorari in this case should be

denied.

Respectfully submitted,

MIKE MOORE

ATTORNEY GENERAL

STATE OF MISSISSIPPI

MARVIN L. WHITE, JR.

ASSISTANT ATTORNEY GENERAL

COUNSEL OF RECORD 4

BY: Ww. V4 Mak d

MARVIN L. WHITE, JR. / // ‘

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-39-

CERTIFICATE OF SERVICE

I, Marvin L. White, Jr., Assistant

Attorney General for the State of

Mississippi, do hereby certify that I have

this day caused to be mailed, via United

States Postal Service, first-class postage

prepaid, three (3) true and correct copies

of the foregoing Brief in Opposition to each

of the following:

Timothy N. Black, Esquire

Wilmer, Cutler & Pickering

1666 K Street, N.W.

Washington, D.C. 20006

Joseph P. Hudson, Esquire

Lawyer and Hudson

Post Office Box 908

Gulfport, MS 39501

Earl B. Stegall, Esquire

Post Office Box 1542

Gulfport, MS 39501

Bb

This, _the y S of June, 1988.

“MARVIN L. LT Le JR. YA aa

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