# Opposition Brief — Jordan v. Mississippi > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1691%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 488 U.S. 818 ## Text 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 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. / // ‘ | / / | ee -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 / / / / -40- | | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1691%3A2. Public record. Not legal advice.