Case: 10-70030 Document: 00512675945 Page: 1 Date Filed: 06/25/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 10-70030 June 25, 2014
Lyle W. Cayce
Clerk
RICHARD JORDAN,
Petitioner - Appellant,
v.
CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
Before DENNIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Richard Jordan appeals from the district court’s
denial of a certificate of appealability (COA) for habeas corpus relief pursuant
to 28 U.S.C. § 2254. Jordan was convicted of capital murder committed in the
course of a kidnapping and was sentenced to death on four separate occasions.
Following the first three convictions, Jordan challenged his death sentence
successfully, was re-tried, and was again re-sentenced to death. In 1991, on
remand from the third successful challenge to his sentence, Jordan entered into
an agreement with the prosecution to serve a sentence of life imprisonment
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without parole in exchange for not further contesting his sentence. He
nevertheless challenged his sentence, seeking to have it converted to life
imprisonment with the possibility of parole. The Mississippi Supreme Court
held that the agreement was invalid and remanded for a new sentencing trial.
Thereafter, Jordan sought to re-enter into the same plea agreement. The
prosecution declined, and instead successfully sought the death penalty for the
fourth time in a 1998 sentencing trial. Jordan requests a COA on several claims
arising out of that 1998 sentencing. For the reasons that follow, we DENY
Jordan a COA on both his prosecutorial vindictiveness claim and his ineffective
assistance of counsel claims.
I.
In January 1976, Jordan abducted Edwina Marter from her home at
gunpoint. Jordan then drove Marter to a secluded area in the woods north of
Gulfport, Mississippi. While she was either running away or kneeling, Jordan
fatally shot Marter in the back of the head. The following day Jordan was
arrested after he picked up the $25,000 ransom he had demanded in exchange
for Marter. Jordan has been tried and sentenced to death four times for killing
Marter. As the procedural history and testimony offered over the course of these
proceedings are relevant to his claims before us in this appeal, we will now
recount the history of this case.
A.
Jordan was first tried in 1976. Assistant District Attorney Joe Sam Owen,
who figures prominently in Jordan’s current claim of prosecutorial
vindictiveness at issue in this appeal, prosecuted the case along with another
attorney. Prior to the trial, defense counsel moved for a psychiatric examination,
and Jordan was examined by Dr. Clifton Davis. The intake report from this
evaluation stated incorrectly that Jordan was dishonorably discharged from the
Army following his service in Vietnam—he was in fact honorably discharged,
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and it is unclear why the error occurred.1 The psychiatric evaluation report
contained other information that Jordan presumably related to the doctor,
including Jordan’s version of the kidnapping and murder, in which Jordan
reported that an accomplice shot Marter.
According to Dr. Davis, Jordan “explained that the FBI was more or less
responsible for [Marter’s] death since they blundered the job in following
instructions.” “He comments that he is sorry that she was killed but then
shrugged this off by saying ‘better luck next time.’” Dr. Davis concluded that
Jordan had antisocial personality disorder, a category describing people “in
conflict with the mores of society” who “are selfish, callous, irresponsible,
impulsive, and unable to feel guilt or to learn from experience and punishment.”
Dr. Davis found Jordan competent to stand trial. Dr. Davis did not testify at the
1976 trial, or any trial thereafter, but the expert who later examined Jordan in
1998 relied on Dr. Davis’s reports. David Melton, a sheriff’s investigator who
investigated the crime scene where Marter’s body was found, testified briefly at
the first trial regarding chain of custody. Melton was not questioned about his
investigation of the scene.
Under then-existing Mississippi law, Jordan was automatically sentenced
to death after being found guilty of capital murder. The Mississippi Supreme
Court subsequently mandated bifurcated proceedings in capital murder cases.
See Jackson v. State, 337 So. 2d 1242 (Miss. 1976) (citing Gregg v. Georgia, 428
U.S. 153 (1976)). As a result, the trial court granted Jordan a new trial with
bifurcated guilt and sentencing proceedings.
1
See Jordan v. Mississippi, 912 So. 2d 800, 815–16 (Miss. 2005) (“Dr. Davis’ report
[states] that Jordan was dishonorably discharged from the Army. Jordan includes evidence
that he was honorably discharged. From the record, we find little explanation for this error
in the report.”).
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B.
Owen also served as the lead prosecutor at Jordan’s second trial. Jordan
was convicted of capital murder on essentially the same evidence introduced at
the first trial. During the sentencing phase, the prosecution offered new
evidence to show that Jordan shot Marter “execution-style.” Although
Investigator Melton did not testify during the guilt phase, the prosecution
attempted to introduce testimony from Melton regarding blood spatters that he
had observed at the murder scene during the sentencing phase of the trial.
Melton was prepared to testify that he had observed blood spatters at the scene
that indicated that Marter was kneeling in front of Jordan when she was shot.
The trial court excluded Melton’s testimony because it was not offered
during the guilt phase. Dr. William Atchison, the pathologist who conducted
Marter’s autopsy, had, however, testified during the guilt phase as to the cause
of death and the path of the bullet, which he described as traveling “upward.”
Based on that limited testimony as to Marter’s position at the time she was
killed, the prosecution was permitted to argue that Marter was on her knees
when she was shot. Jordan offered evidence in mitigation, including character
testimony from family and friends. Some of Jordan’s witnesses mentioned his
military service, and both of his parents testified that he had been honorably
discharged.
The jury convicted Jordan and he was again sentenced to death. This
court held that the jury was improperly instructed on imposition of the death
penalty, granted federal habeas relief setting aside the death sentence (but not
the conviction), and afforded Jordan a new sentencing trial. See Jordan v.
Watkins, 681 F.2d 1067 (5th Cir. 1982).
C.
In 1983, Owen, now an attorney in private practice appearing for the state
as special prosecutor, prosecuted the new sentencing trial. Investigator Melton
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testified that he believed “Marter was standing still when the bullet was fired”
based on his blood spatter analysis. According to Melton, Marter was “not
moving” and possibly “was on her knees.” Melton testified that he had learned
to analyze blood stains at a 1973 seminar taught by Dr. Herbert MacDonnell,2
who Melton indicated was a noted authority in the field of blood stain analysis.
Dr. Atchison augmented his 1977 testimony with his opinion that the gun was
between thirty inches and four feet from Marter’s head when fired. Dr. Atchison
also testified that the trajectory of the bullet suggested that Marter could have
been kneeling, with her head bowed, or running away. The defense presented
expert testimony suggesting that it was impossible to determine from Dr.
Atchison’s autopsy report the distance from which Marter was shot.
In mitigation, Jordan testified about his experience serving as a soldier in
Vietnam. He stated that, for about two years, his “responsibility was
maintaining the machine guns that the aircraft was armed with and to provide
fire power if necessary to protect the aircraft against hostile attacks.” He
testified that he was injured in a helicopter crash and then went on “ground duty
for a while.” In total, he stated that he was in Vietnam for almost three years.
He extended his tour longer than necessary because, “the policy was that there
didn’t have to be [two males in the same family] in the country,” so he stayed in
Vietnam to allow his brother, Robert, to be in the United States. Jordan’s
brother Robert also testified that Jordan extended his tour so that Robert could
be home. Defense counsel asked Robert whether he noticed any change in
Jordan after Vietnam. Robert responded, “I noticed some difference. It is hard
to pinpoint. He would be nervous. I don’t know; just unsettled is the best way
I could put it. But there was a change. There would have to be after three years
in Viet Nam [sic].”
2
Melton incorrectly referred to Dr. MacDonnell as “Herbert McDonald.”
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Jordan was again sentenced to death. Thereafter, the United States
Supreme Court granted certiorari, vacated the death sentence, and remanded
Jordan’s case to the Supreme Court of Mississippi for further consideration in
light of a new Supreme Court case holding that evidence that the defendant
would not pose a danger if spared (but incarcerated) must be considered
potentially mitigating, and may not be excluded from the sentencer’s
consideration. See Jordan v. Mississippi, 476 U.S. 1101 (1986) (relying on
Skipper v. South Carolina, 476 U.S. 1 (1986)). The Mississippi Supreme Court
ordered the case remanded to the trial court for a new sentencing trial. See
Jordan v. State, 518 So. 2d 1186 (Miss. 1987).
D.
In 1989, in preparation for the fourth sentencing trial, Jordan’s counsel
obtained an affidavit from Dr. MacDonnell, the forensics expert who taught the
blood stain evidence seminar that investigator Melton had attended. In this
appeal, Jordan argues that the attorneys that represented him at the 1998 trial
should have obtained, reviewed, and used this 1989 affidavit of Dr. MacDonnell,
obtained by the earlier counsel, in preparing his defense and specifically in
rebutting Melton’s testimony. In the affidavit, Dr. MacDonell averred as follows
regarding Melton’s 1983 blood stain testimony:
I have reviewed the testimony of Mr. David Melton[] . . . . I am the
‘Herbert McDonald’ to whom Mr. Melton refers . . . and it is my
course he describes as having attended, and based on which he
purports to have obtained his expertise in the analysis of blood
spatters. . . . Based on Mr. Melton’s testimony and description of
the scene of the crime, I have substantial doubts about the
conclusions reached by Mr. Melton. . . . If Mr. Melton’s description
of the scene is accurate, given my years of experience and knowledge
in the field of blood-stain pattern analysis, I would conclude that the
victim probably was moving at the time she was shot. . . . I am
willing to conduct further investigation for the defense attorneys,
and testify if necessary, if compensation is available for my work.
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In 1989, Jordan’s attorney also obtained supporting affidavits from
psychologist Dr. John P. Wilson and psychiatrist Dr. Sheldon Zigelbaum. In his
affidavit, Dr. Wilson averred that there is a “high incidence of PTSD” among
Vietnam veterans. He stated that he had not met with Jordan, but “certain
basic information concerning Mr. Jordan” had been relayed to him and, based
on that information and the doctor’s experience and research, he believed that
it was “extremely likely” that, if evaluated, Jordan would be diagnosed with
PTSD. Dr. Wilson stated that he was available and willing to evaluate Jordan
and present testimony in mitigation if paid his “standard rates.” Dr. Zigelbaum
similarly averred that he had “been informed that Mr. Jordan served almost
three tours of duty in Vietnam” and concluded, based on experience and
research, that “it is entirely possible that Mr. Jordan may have had at the time
of the crime at least some manifestations of PTSD.”
E.
Instead of undergoing a new sentencing trial, Jordan reached an
agreement in 1991 under which he would be sentenced to life imprisonment
without parole in exchange for his promise not to challenge that sentence.
During the plea agreement process Jordan was represented by his attorneys at
the time, Robert McDuff and Joseph Hudson, and the state was represented by
Owen as special prosecutor. The court accepted the plea and Jordan was
sentenced to life imprisonment without parole pursuant to the agreement in
December 1991.
Several years later, the Mississippi Supreme Court held that a sentencing
agreement to life without parole for a crime committed before that sentence was
available under then-existing statutory law was against public policy and “void
ab initio.” Lanier v. State, 635 So. 2d 813, 816–17 (Miss. 1994). The Mississippi
Supreme Court held that such an agreement was invalid, and that both parties
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were therefore “placed back in the positions which they occupied prior to
entering into the agreement.” Id.
Following the Mississippi Supreme Court’s decision in Lanier, Jordan
filed a motion in the state trial court contending that his own sentence to life
without parole was invalid. Before the trial court ruled on Jordan’s motion, the
Mississippi legislature amended the statute so that death, life with parole, or life
without parole were all available sentences for the offense. See 1994 Miss. Laws
Ch. 566 (amending Miss. Code Ann. § 97-3-21).3 The Mississippi trial court then
denied Jordan’s motion in full, and Jordan appealed to the Mississippi Supreme
Court.
The Mississippi Supreme Court held that Jordan’s life without parole
sentence was invalid:
[T]his case must be reversed and remanded because the contract in
the case sub judice is void, even though . . . Jordan entered into the
agreement knowingly, voluntarily and intelligently. The agreement
providing for life without the possibility of parole was not a
permissible sentencing option under [state law] in 1987, thus the
circuit court had no authority to issue such a sentence.
Additionally, the agreement is void as against public policy.
Jordan v. State, 786 So. 2d 987, 1000 (Miss. 2001) (citing Jordan v. State, No.
95–KP–00113–SCT (Miss. August 7, 1997)). The Mississippi Supreme Court
vacated Jordan’s sentence and remanded to the trial court for re-sentencing,
stating that “the State has the right to seek the death penalty” on remand. Id.
On remand Jordan asked Owen to reinstate the earlier agreement for a
sentence of life imprisonment without parole, which was permissible pursuant
to the state’s post-Lanier legislation. Owen declined. Jordan filed a motion in
the trial court requesting a sentence of life imprisonment without parole. Owen
3
Jordan contends in this appeal that, after the July 1994 amendment was enacted,
Mississippi law would have allowed Owen in a subsequent sentencing to agree again—lawfully
this time—to a life without parole sentence. The state does not contest Jordan’s argument.
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contested the motion and refused to waive imposition of the death penalty. The
court denied the motion.
F.
Jordan’s fourth sentencing trial took place in 1998. Owen again acted as
special prosecutor. Attorneys Tom Sumrall and Waide Baine represented
Jordan. In this appeal, Jordan contends that these attorneys failed to provide
him constitutionally required effective assistance of counsel.
Prior to trial, Jordan moved for a mental health examination to determine
whether he suffered from PTSD due to his military service. The prosecution did
not object to an examination but argued that it was entitled to a copy of the
examiner’s report. Jordan was examined by Dr. Henry A. Maggio, and the
doctor’s report was furnished to both sides.
Dr. Maggio’s report recited Jordan’s personal history. Jordan’s counsel did
not provide Dr. Maggio with Jordan’s military records or honorable discharge
form, or the affidavits of Dr. Wilson and Dr. Zigelbaum, and those alleged errors
are at issue here. In creating his report, Dr. Maggio reviewed the 1976 reports
prepared by Dr. Davis for the earlier trial. Apparently in reliance on Dr. Davis’s
reports, Dr. Maggio stated erroneously that Jordan was dishonorably discharged
from the military. Dr. Maggio’s report stated:
Review of the previous intake interview and psychiatric evaluation
reveals a consistency of some of the history; however, there are
moments of inconsistency in which Mr. Jordan previously
acknowledged that he had always been a good con man. He has
done a number of illegal activities but had not been caught except
on one or two occasions; that he had been fired or asked to resign
because of embezzlement of $43,000.00; that while he was under
financial pressures he wrote bad checks and then was searching for
a way for quick money at which time he considered bank robbery
with kidnapping and extortion and had worked out the plan himself.
He then readily blames the F.B.I. more or less for the woman’s
death shrugging it off by saying “better luck next time.” He
apparently displayed little remorse, held the F.B.I. responsible, no
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overt sadness. The review also shows that he joined the Army in
1964 and had been charged with check forgery and agreed to join
the Army so the charges would be dropped. He was also court
martialed in 1970 for falsification of official documents and
sentenced to 9 months in Leavenworth. He received a Dishonorable
Discharge from the Army in 1971. All of this is in contrast and
contradiction to what he told me when he denied having any
difficulty with authority figures, having an Honorable Discharge
from the military and being a good guy prior to this murder and has
been a good guy since then while he’s in prison.
Dr. Maggio concluded, like Dr. Davis did before, that Jordan had antisocial
personality disorder and was competent to stand trial.
At the trial, Dr. Maggio did not testify and his report was not introduced
into evidence. However, the prosecution used Dr. Davis’s and Dr. Maggio’s
reports in cross-examining a boyhood friend of Jordan’s, Richard Luther King.
Jordan’s attorney stated he was not going to call two additional character
witnesses because of the possibility of their being cross-examined on the basis
of Dr. Maggio’s report. Then, several prison employees testified as to Jordan’s
good work and disciplinary record in prison.
Once again, the prosecution argued that Jordan shot Marter in the back
of the head, “execution-style,” while she was on her knees. This theory was part
of the prosecution’s case for the application of the “especially heinous, atrocious
or cruel” statutory aggravating circumstance under Mississippi Code § 99-19-
101(5)(i).4 Melton testified that, based on his examination of the crime scene, he
was of the opinion that Marter “was in a stationary position” rather than
running when Jordan shot her. On cross-examination, defense counsel brought
out the fact that, even though Melton believed that Marter was shot from above
in the back of the head while she was on her knees, investigators found no
4
At the time of the trial, the “especially heinous, atrocious or cruel” statutory
aggravating circumstance was codified at § 99-19-101(5)(h). It was moved to § 99-19-101(5)(i)
on April 25, 2013. See 2013 Miss. Laws Ch. 556.
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evidence of where the bullet hit the ground despite a “[v]ery thorough visual
inspection” of an area in which the bullet should have landed if the execution-
style shooting theory were correct.
Defense counsel also attempted to demonstrate that Jordan must have
been more than six feet away from Marter when he fired the shot because he was
not blood-stained. On redirect, Melton reiterated that there was no doubt in his
mind that Marter was stationary. On re-cross, Melton testified that “the
position of the [victim’s] body would also play a great role in whether or not the
[shooter] would get blood on [him]. If, for example, [the victim] w[as] on [her]
knees [the shooter] would get no blood on [him]”; but also that it would be
“reasonable to assume” that if the shooter was “standing right behind the
wound,” he would get blood on him. On further redirect, Melton reiterated that
he “believed” that Marter was on her knees when shot.
Dr. Atchison again testified in support of the execution-style shooting
theory. Referring to illustrations of bullet wounds in Marter’s head, Dr.
Atchison described his findings and concluded that Marter was killed by a shot
fired from between a few inches and thirty inches away while “in a stationary
position.” He further testified that it “had been [his] feeling all along” that
Marter was on her knees when shot, and that it was his opinion “[t]hat she was
executed.” Dr. Atchison later described Marter as “possibly in a praying
position” when she was shot. On cross-examination, defense counsel pointed out
that, in his 1983 testimony, Dr. Atchison had testified that it was possible either
that Marter was running and falling or that she was kneeling. However, Dr.
Atchison concluded his testimony by reiterating, “[i]f my theory is correct then
she was shot in the kneeling position in a near close wound.”
The defense called its own expert, Dr. Leroy Riddick, a forensic pathologist
and Alabama state medical examiner. In contrast to Dr. Atchinson, Dr. Riddick
testified that, based on his examination of the evidence, he had concluded that
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Marter’s gunshot wound was a “distant wound or an intermediate range one”
from somewhere between three and ninety feet rather than a contact wound or
a near wound. Dr. Riddick also testified that he “couldn’t tell” and “didn’t know
how anybody could tell” whether Marter was stationary or moving when she
was shot. On cross-examination, Owen asked Dr. Riddick to reiterate that he
did not dispute that Jordan could have shot Marter from as close as three feet
away and that he did not have any opinion as to whether Marter was on her
knees when Jordan shot her in the back of the head. On redirect, Dr. Riddick
clarified his opinion that there was insufficient evidence for any pathologist to
determine that Marter was kneeling rather than standing and running when she
was shot.
Defense counsel asserted Jordan’s military service in Vietnam as a
mitigating factor, and it was included as a possible mitigating circumstance in
a jury sentencing instruction. Owen argued, “[t]here is no evidence about what
[Jordan] did [in Vietnam] or particularly what he did after he got out.”
The jury sentenced Jordan to death. The Mississippi Supreme Court
affirmed the conviction on direct appeal in April 2001. Jordan, 786 So. 2d at
987. Jordan filed a state post-conviction petition in January 2003. In March
2005, the Mississippi Supreme Court, holding that all of Jordan’s claims were
without merit, denied Jordan’s application for leave to proceed on his claims for
post-conviction relief. See Jordan v. State, 912 So. 2d 800 (Miss. 2005); see also
Miss. Code Ann. § 99-39-7 (requiring leave of the Mississippi Supreme Court in
certain circumstances before a defendant may pursue post-conviction relief in
state trial court).
Having exhausted his remedies in Mississippi courts, Jordan sought
federal habeas relief. On August 30, 2010, the district court denied relief on all
of Jordan’s claims. See Jordan v. Epps, 740 F. Supp. 2d 802 (S.D. Miss. 2010).
The district court also denied Jordan’s request for a COA, required for his appeal
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to this court. See 28 U.S.C. § 2253(c)(1)(A). Jordan requests a COA allowing
him to appeal one claim of prosecutorial vindictiveness and several claims of
ineffective assistance of counsel.
II.
“[A] prisoner seeking a COA need only demonstrate ‘a substantial showing
of the denial of a constitutional right.’” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003) (quoting 28 U.S.C. § 2253(c)(2)). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Id.
(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “[A] petitioner need not
show that an appeal will succeed in order to be entitled to a COA. The question
is the debatability of the underlying constitutional claim, not the resolution of
that debate.” Cardenas v. Dretke, 405 F.3d 244, 248 (5th Cir. 2005) (citations
and internal quotation marks omitted).
In making the COA determination, “we view the petitioner’s arguments
through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d).”
Druery v. Thaler, 647 F.3d 535, 538 (5th Cir. 2011) (alteration and internal
quotation marks omitted). Under § 2254(d)(1), a state prisoner’s application for
a writ of habeas corpus “shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the adjudication of
the claim . . . resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d).
“A federal court’s collateral review of a state-court decision must be
consistent with the respect due state courts in our federal system. Where 28
U.S.C. § 2254 applies, our habeas jurisprudence embodies this deference.”
Miller-El, 537 U.S. at 340. “Factual determinations by state courts are
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presumed correct absent clear and convincing evidence to the contrary,
§ 2254(e)(1), and a decision adjudicated on the merits in a state court and based
on a factual determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the state-court
proceeding.” Id. (citing 28 U.S.C. § 2254(d)(2)).
III.
We begin with Jordan’s prosecutorial vindictiveness claim. In Blackledge
v. Perry, 417 U.S. 21 (1974), the Supreme Court explained that the Due Process
Clause is offended by the possibilities of increased punishment upon retrial after
appeal that pose a realistic likelihood of vindictiveness on the part of a
prosecutor. Id. at 28. “[I]t [is] not constitutionally permissible for the State to
respond to [a criminal defendant’s] invocation of his statutory right to appeal by
bringing a more serious charge against him prior to the trial de novo.” Id. at
28–29. To prove prosecutorial vindictiveness, a defendant may (1) show actual
vindictiveness or (2) show sufficient facts to create a presumption of
vindictiveness. United States v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008).
A.
Jordan argues that Owen acted with actual vindictiveness by refusing to
re-enter into a sentencing agreement for life without parole following Jordan’s
successful challenge to the validity of the 1991 agreement. Jordan contends
that, because the sentencing agreement he challenged had been held void ab
initio by the Mississippi Supreme Court, he “was punished for doing nothing
more than ‘what the law plainly allows him to do.’” A defendant pursuing a
actual vindictiveness claim has the burden of proving his claim, by a
preponderance of the evidence, “by presenting objective evidence that the
prosecutor’s actions were designed to punish a defendant for asserting his legal
rights.” Id. A defendant’s “failure to offer any tangible evidence in support of
his [actual] vindictiveness claim dooms it to failure.” United States v. Cooks, 52
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F.3d 101, 106 (5th Cir. 1995); see also United States v. Goodwin, 457 U.S. 368,
373 (1982); Blackledge, 417 U.S. at 28. Here, Jordan has not presented any
evidence of actual prosecutorial vindictiveness.
Jordan appears to contend that he need not point to such evidence of
Owen’s actual retaliatory intent because, as the Mississippi Supreme Court
expressly found, “Owen declined Jordan’s offer and indicated that he would not
make a plea agreement with Jordan since Jordan had previously violated his
agreement with the State that he would not appeal his plea and sentence of life
imprisonment without the possibility of parole.” Jordan, 786 So. 2d at 1000. In
effect, Jordan argues that Owen’s statement constitutes an admission of
impermissible retaliatory intent.
We disagree. As the Supreme Court explained in Bordenkircher v. Hayes,
it is not vindictive for a prosecutor to follow through on a threat made during
plea negotiations. 434 U.S. 357, 363–64 (1978); cf. Hayes v. Cowan, 547 F.2d 42,
43, 45 (6th Cir. 1976) (stating that where the prosecutor warned the defendant
during plea negotiations “that if he did not plead guilty, he would be charged
under the habitual criminal statute” carrying a much longer sentence, and the
prosecutor then carried out that threat, “a vindictive motive need not be
inferred” because “[t]he prosecutor has admitted it”), rev’d by Bordenkircher, 434
U.S. 357. Rather, it merely establishes a motive—enforcement of the threat
implicit in the plea agreement. See Bordenkircher, 434 U.S. at 363–64.
As the Bordenkircher Court explained:
[T]he plea may have been induced by promises of a recommendation
of a lenient sentence or a reduction of charges, and thus by fear of
the possibility of a greater penalty upon conviction after a trial.
While confronting a defendant with the risk of more severe
punishment clearly may have a “discouraging effect on the
defendant’s assertion of his trial rights, the imposition of these
difficult choices [is] an inevitable”—and permissible— “attribute of
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any legitimate system which tolerates and encourages the
negotiation of pleas.”
Id. (second alteration in original) (citations omitted). The fact that Owen carried
out the threat implicit in the plea agreement does not serve as evidence of
Owen’s actual vindictiveness. The state court’s statement that “Owen . . .
indicated that he would not make a plea agreement with Jordan since Jordan
had previously violated his agreement with the State” does not amount to a
finding of an admission of vindictive motive by which Jordan can “prove
objectively that [Owen’s] . . . decision [to refuse to again offer a sentence of life
without parole] was motivated by a desire to punish him for doing something
that the law plainly allowed him to do.” See Goodwin, 457 U.S. at 370–73.
Jordan presented no additional evidence, and thus fails to prove his actual
vindictiveness claim.
B.
Jordan does not explicitly raise a presumptive vindictiveness claim, and
we are not convinced that there is such a claim before us. Jordan’s brief
addresses the prosecutor’s “vindictiveness” in general, without ever specifying
which of the two forms of vindictiveness he is asserting here. For example,
Jordan appears to make an actual vindictiveness claim when he states:
The District Court quoted this language but failed to consider the
very different context of Jordan’s case. There was no need to
consider whether circumstances justified a presumption of
vindictiveness because there is no dispute that the Special
Prosecutor, whose decision is at issue here, refused to agree [sic] a
deal that he previously found that acceptable only because Jordan
exercised a legal right.
(emphasis added). Jordan also argues:
Here, there is more than a “presumption” of vindictiveness. The
Mississippi Supreme Court has already resolved the key fact—that
the prosecutor refused Jordan’s offer only because of his legal
challenge—in Jordan’s favor.
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(emphasis added). Jordan thus appears to argue that the prosecutor engaged in
actual rather than presumptive vindictiveness. Nevertheless, because the
dissenting opinion addresses a presumption of vindictiveness claim, we address
why—even assuming arguendo that Jordan had raised a presumption of
vindictiveness claim—any such argument is foreclosed by our court’s binding
precedent in Deloney v. Estelle, 713 F.2d 1080, 1085 (5th Cir. 1983).
Our presumption of vindictiveness analysis begins with the Supreme
Court’s decision in Blackledge, 417 U.S. 21. In Blackledge, the defendant was
charged with a misdemeanor of assault with a deadly weapon based on an
altercation with another inmate. Id. at 22. The defendant was found guilty and
received a six-month sentence. Id. The procedural rules in North Carolina gave
the defendant the right to appeal and receive a de novo trial. Id. After the
defendant filed his notice of appeal, the prosecutor obtained an indictment from
a grand jury, charging the defendant with the felony of assault with a deadly
weapon with intent to kill and inflict serious bodily injury for the same conduct
for which the defendant had been previously tried and convicted of a
misdemeanor. Id. at 23. The defendant pleaded guilty and received a sentence
of five to seven years. Id. The Supreme Court held that charging the defendant
with a more serious crime for the same act created a presumption of
prosecutorial vindictiveness, explaining:
A person convicted of an offense is entitled to pursue his statutory
right to a trial de novo, without apprehension that the State will
retaliate by substituting a more serious charge for the original one,
thus subjecting him to a significantly increased potential period of
incarceration.
Id. at 28.
In contrast to the prosecutor in Blackledge, Owen never attempted to
charge Jordan with any crime other than the one that Owen had repeatedly
charged him with over the proceeding three decades. In Deloney, we found this
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distinction critical and thus held that there is no claim for prosecutorial
vindictiveness absent an increase in charges beyond those raised in the original
indictment. 713 F.2d at 1085. As we stated in Deloney:
We stress that in this case the asserted increased seriousness of the
charges stems from the reduction of the charges pursuant to the
plea bargain. The charges were not enhanced beyond the original
indictments. Thus actually Deloney’s claim reduces itself to a
bootstrap device in three steps: First, plea bargain to get the
charges cut down. Second, get the plea bargain set aside for lack of
understanding and coercion of his agreement by his attorney.
Third, insist that it would be prosecutorial vindictiveness now to be
prosecuted at the same level of jeopardy to punishment that the
original indictments called for. The law does not find this to be
prosecutorial vindictiveness. This Court has held that a prosecutor
may, without explanation, refile charges against the defendant
whose bargained-for guilty plea to a lesser charge has been
withdrawn or overturned on appeal, provided that an increase in the
charges is within the limits set by the original indictment. The
charges facing Deloney under the second indictment were not only
within the limits of those in the first indictment, but were the same.
Id. (internal quotation marks and citations omitted).
Jordan attempts to use an identical three-step bootstrapping technique
here: First, he was originally indicted with capital murder—a crime that at the
time carried an automatic death sentence under Mississippi law. Jordan went
to trial three separate times. Each time Jordan was charged with murder, and
each time Owen sought the death penalty. Jordan then entered into a plea
agreement to get the sentence reduced from death to life without parole. Second,
Jordan got the plea bargain set aside as void ab initio. Third, he insists “that it
would be prosecutorial vindictiveness now to be prosecuted at the same level of
jeopardy to punishment that the original indictments called for.” Id. Owen
never imposed a charge or sentence greater than the one that he originally—and
repeatedly—charged Jordan with before the plea bargain. As a result, Owen’s
actions do not give rise to a presumption of prosecutorial vindictiveness. See
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Miracle v. Estelle, 592 F.2d 1269, 1275 (5th Cir. 1979) (noting that the “sine qua
non of a prosecutorial vindictiveness claim is that the second charge is [in] fact
harsher than the first” and refusing to focus on the “end result” regarding
whether a conviction would result in a different punishment (citing Jackson v.
Walker, 585 F.2d 139, 146 (5th Cir. 1978)).
We disagree with the dissenting opinion that Deloney is distinguishable
because the defendant in Deloney wanted to go to trial on the merits while
Jordan did not want to go to trial, but instead wanted to reinstate his prior
bargained-for life sentence without parole. We fail to see how this distinction
matters under Deloney. Deloney’s reasoning does not hinge on whether Deloney
wanted a plea agreement. Instead, Deloney instructs us to make a simple and
straightforward comparison between the original indictment and the later
indictment that follows the exercise of a legal right. If there is no change in the
charges filed or punishment sought, then there is no presumption of
vindictiveness. As we explained in Deloney, there is no prosecutorial
vindictiveness when “the asserted increased seriousness of the charges stems
from the reduction of the charges pursuant to the plea bargain. The charges
were not enhanced beyond the original indictments.” 713 F.2d at 1085. In
Jordan’s case, the original charges and the later charges were likewise the same.
Moreover, it is not clear from the decision in Deloney that there is actually
any distinction between that case and this one. Certainly, Deloney filed a
motion for new trial in his case, which was granted. Id. at 1081. He also wanted
the court to enter a judgment of acquittal. Id. at 1086 (“Deloney next claims that
he was denied due process and equal protection when the trial court granted his
motion for a new trial . . . but failed to enter a judgment of acquittal.”). Beyond
this, the opinion tells us nothing about Deloney’s state of mind or whether he
wanted or attempted to secure another plea bargain before his trial. Deloney’s
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desire for a plea agreement is not discussed in the court’s analysis, and thus
cannot serve as our basis for distinguishing this precedent.
The dissenting opinion identifies two elements under Blackledge for
establishing circumstances that present a realistic likelihood of prosecutorial
vindictiveness. According to the dissenting opinion, the first element is that the
prosecutor has a “considerable stake” in maintaining the status quo and
discouraging action that could upset such status quo. The second element is that
the prosecutor responds by “upping the ante” by imposing, or subjecting the
defendant to, the risk of harsher punishment.
Our court has not yet adopted such a test for claims of presumptive
prosecutorial vindictiveness. Even if this were the test, the prosecutor here does
not meet either element. First, when our case law discusses the prosecutor
having a “considerable stake” in maintaining the status quo, it discusses the
desire on the part of prosecutors to avoid having to again go to trial. See, e.g.,
Bordenkircher, 434 U.S. 357; Blackledge, 417 U.S. at 27–28. In Blackledge, the
Supreme Court explained:
A prosecutor clearly has a considerable stake in discouraging
convicted misdemeanants from appealing and thus obtaining a trial
de novo in the Superior Court, since such an appeal will clearly
require increased expenditures of prosecutorial resources before the
defendant’s conviction becomes final, and may even result in a
formerly convicted defendant’s going free. And, if the prosecutor
has the means readily at hand to discourage such appeals—by
“upping the ante” through a felony indictment whenever a convicted
misdemeant pursues his statutory appellate remedy—the State can
insure that only the most hardy defendants will brave the hazards
of a de novo trial.
417 U.S. at 27–28. These circumstances are not present here: Owen made the
choice to go to trial rather than enter into another plea agreement. Because
Jordan requested a plea agreement, it was Owen, rather than Jordan who
decided to expend additional prosecutorial resources. See Goodwin, 457 U.S. at
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376–77 (“[Blackledge] reflect[s] a recognition by the Court of the institutional
bias inherent in the judicial system against the retrial of issues that have
already been decided,” which “might” “subconsciously motivate a vindictive
prosecutorial or judicial response to a defendant’s exercise of his right to obtain
a retrial of a decided question.”); United States v. LaDeau, 734 F.3d 561, 569–70
(6th Cir. 2013) (“When the prosecution is forced to do over what it thought it had
already done correctly, . . . the prosecution’s stake in discouraging the
defendant’s exercise of a right may be considerable.” (internal quotation marks
and citations omitted)).
Bordenkircher further highlights a necessary ingredient for the
presumption of vindictiveness that was absent there, but present in
Blackledge—circumstances suggesting a high possibility of retaliation against
the defendant for challenging results the prosecutor previously sought and
obtained. See Bordenkircher, 434 U.S. at 363; see also Goodwin, 457 U.S. at
381–82 (discussing Bordenkircher). Namely, there was no presumption of
vindictiveness in Bordenkircher because the prosecutor did not have to re-
litigate a matter that had already resulted in judgment, and by contrast, there
was a presumption of vindictiveness in Blackledge because the prosecutor there
did. Like the prosecutor in Bordenkircher, Owen was not required to re-litigate
Jordan’s case in order to obtain a conviction for murder because Jordan was
willing to plead guilty. Second, as we have already noted, Owen in no way
“upped the ante.” He merely sought the same punishment that he had sought
before entering into the invalidated plea agreement.
Furthermore, as Jordan himself contends, the plea agreement was “null
from the beginning” and never had any legal “force or effect.” See Hood ex rel.
State Tobacco Litig., 958 So. 2d 790, 815 (Miss. 2007); Richardson v. Canton
Farm Equip., Inc., 608 So. 2d 1240, 1254 (Miss. 1992); see also Lanier, 635 So.
2d at 817 (explaining that, because the agreement is void ab initio, “both parties
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are placed back in the positions which they occupied prior to entering into the
agreement”). If the parties are placed back in the exact same situation that they
were in before the plea agreement, it is hard to understand how Jordan is in any
different situation now than he was at the end of his previous trial, where Owen
similarly sought, and Jordan received, the death penalty. Declaring the plea
agreement void ab initio is akin to saying that the plea agreement never
occurred at all. If the plea agreement never occurred, then Owen’s actions in
pursuing the exact same penalty that he had pursued in the three previous trials
cannot be the pursuit of a “more severe punishment than initially sought and
obtained.”
We have declined to find a presumption of prosecutorial vindictiveness
where, first, the criminal defendant and the prosecutor reached a plea
agreement that was accepted by the court; second, the defendant succeeded in
having the plea agreement set aside, proceeded to trial, and was found guilty;
and third, at sentencing, contended that it would be vindictive for the
prosecution to ask for a sentence greater than the one to which it had initially
agreed. In such cases, we have concluded that the defendant should not be able
to use vindictiveness doctrines to abuse the ordinary plea negotiation process by
demanding the benefits, but not the burdens, of the bargain. See, e.g., Ehl v.
Estelle, 656 F.2d 166, 171 (5th Cir. Unit A 1981) (“We have not found a case from
any jurisdiction that holds that a defendant can accept a plea bargain, take back
his part of the bargain, insist upon a trial on the merits, and yet bind the
prosecutor, and thus the Court, on the original promised recommendation of
punishment after the prosecutor has lost all benefits of the bargain. To permit
this situation would undercut the entire purpose and aim of the plea bargaining
process.”); accord United States v. Moulder, 141 F.3d 568 (5th Cir. 1998);
Deloney, 713 F.2d 1080. The dissenting opinion cites the stipulations supporting
the prosecutor’s initial decision to enter into a plea agreement with Jordan.
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There were no doubt many reasons, including those in the stipulations, why the
prosecution may have decided to pursue a plea agreement rather than another
trial. But when we evaluate a presumption of vindictiveness claim, we focus
instead on a different and narrower question: Is there an increase in the charge
between the initial indictment and the indictment following the exercise of a
right? Because the answer here is no, our inquiry is at an end.5
IV.
We now turn to Jordan’s ineffective assistance of counsel claims, on which
he also requests a COA.
“In all criminal prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const. amend VI. Under
Strickland v. Washington, 466 U.S. 668 (1984), to prevail on a claim that a
criminal defendant’s attorneys failed to provide constitutionally required
effective assistance of counsel, the defendant must show “(1) that his counsel’s
performance was deficient, and (2) that the deficient performance prejudiced his
defense.” Woodward v. Epps, 580 F.3d 318, 325 (5th Cir. 2009).
A.
Jordan contends that his attorneys performed deficiently for five related
reasons involving Melton’s “execution-style shooting” testimony: (1) they were
unprepared to cross-examine Melton; (2) they were not prepared to show that
Melton had no record of his alleged blood spatter observations; (3) they did not
5
The dissenting opinion also notes that the Ninth Circuit addressed similar
circumstances and granted the defendant relief in Adamson v. Ricketts, 865 F.2d 1011 (9th
Cir. 1988). While the Ninth Circuit may have taken a different approach to this question, we
are bound by our own prior precedent on this issue. United States v. Short, 181 F.3d 620, 624
(5th Cir. 1999) (“[T]his panel is bound by the precedent of previous panels absent an
intervening Supreme Court case explicitly or implicitly overruling that prior precedent.”). As
a result, even assuming arguendo that Jordan raises a presumption of vindictiveness claim,
it would fail under our precedent. Cf. White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (“Section
2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this
Court’s precedent; it does not require state courts to extend that precedent or license federal
courts to treat the failure to do so as error.”).
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request funds for an expert who could have helped prepare for cross-examination
and who could have testified in rebuttal to Melton; (4) they failed to rebut the
prosecution’s execution-style killing theory with available expert testimony,
through cross-examining Melton with his teacher, Dr. Herbert MacDonell’s
affidavit or treatise, or with transcripts of prior proceedings; and (5) they were
unable to use the previous trial transcript to show the jury that the prosecution
had previously accepted Jordan’s version that the killing was unintended.
Jordan contends that he was prejudiced by these failings because, had his
attorneys rebutted Melton’s testimony as he argues they should have, the jury
may not have sentenced him to death.
The Mississippi Supreme Court found that Jordan’s attorneys performed
deficiently, and the state does not challenge that conclusion. See Jordan, 912 So.
2d at 812. Accordingly, we assume arguendo that the attorneys performed
deficiently and proceed to assess whether the deficient performance prejudiced
Jordan’s defense, which the Mississippi Supreme Court decided against Jordan.
See Woodward, 580 F.3d at 330.
“Under Strickland, a defendant is prejudiced by his counsel’s deficient
performance if ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’”
Porter v. McCollum, 558 U.S. 30, 40 (2009) (quoting Strickland, 466 U.S. at 694).
“A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland,
466 U.S. at 694). In the capital sentencing context, like here, to assess prejudice,
we must “reweigh the evidence in aggravation against the totality of available
mitigating evidence.” Id.
Jordan fails to make the requisite substantial showing of prejudice for
several reasons. First, the sentencing jury’s finding that the shooting was
“execution-style” was only one of two reasons the jury determined that Jordan’s
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crime satisfied Mississippi’s “especially heinous, atrocious, or cruel” statutory
aggravating circumstance. See Miss. Code Ann. § 99-19-101(5)(i). The jury also
found that the murder was “especially heinous, atrocious, or cruel” because
Marter “was subjected to extreme mental torture caused by her abduction from
the home wherein she was forced to abandon her unattended three-year-old child
and removed to a wooded area.” Jordan fails to demonstrate a reasonable
probability that a stronger rebuttal of Melton’s testimony would have altered the
jury’s “extreme mental torture” finding.
Furthermore, in addition to the “especially heinous, atrocious, or cruel”
factor, the jury also found that two other statutory aggravating circumstances
were present: first, that the crime was committed while Jordan was engaged in
the commission of a kidnapping, Miss. Code Ann. § 99-19-101(5)(d), and second,
that the crime was committed for pecuniary gain, id. § 99-19-101(5)(f). Those
findings of the jury were clearly supported by the evidence, and Jordan has
shown no reason to think that better rebuttal of Melton would have had any
effect on those findings. Moreover, even if Jordan’s counsel had better rebutted
Melton’s testimony, the prosecution could have still pointed to Dr. Atchinson’s
independent testimony as a basis for the execution-style shooting theory.
In sum, there is little reason to think that a better rebuttal of Melton’s
testimony would have significantly affected the jury’s findings regarding
aggravating factors. Accordingly, we are not persuaded that reasonable jurists
could find the district court’s resolution of this claim to be debatable. We decline
Jordan’s request for a COA on this ineffective assistance of counsel claim.
B.
Jordan’s next ineffective assistance of counsel claim involves Dr. Maggio’s
report that stated erroneously that Jordan was dishonorably discharged. The
report was not introduced into evidence but was used to cross-examine a few of
Jordan’s witnesses. We understand Jordan to have the following grievances
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with his attorneys: (1) they failed to provide Dr. Maggio with correct information
of Jordan’s honorable discharge; (2) they failed to warn Jordan of the
consequences of participating in Dr. Maggio’s examination; and (3) they failed
to pursue a mental health evaluation on PTSD from a doctor other than Maggio.
Assuming arguendo that Jordan’s counsel acted deficiently in these
respects, we are not persuaded that there is a debatable question of prejudice.
Given the minimal role Dr. Maggio’s report played in the sentencing
trial—again, it was used only in cross-examination of a few witnesses and was
not introduced into evidence—and the fact that most of the damaging material
in the report, including Jordan’s statement to Dr. Davis blaming the FBI and
blithely saying “better luck next time,” is not contended to be inaccurate, we do
not think there is a reasonable case to be made that Jordan’s counsel’s
performance regarding Dr. Maggio prejudiced Jordan’s defense. We are not
persuaded that the district court’s resolution is debatable.
As for the claim that his attorneys’ failure to pursue a mental health
evaluation on PTSD from a doctor other than Dr. Maggio, we agree with the
district court that Jordan has not shown a reasonable probability that a different
doctor would have provided a more favorable evaluation and we are not
persuaded that the district court’s conclusion is debatable.
Because we do not think the question of prejudice as to Jordan’s claims
relating to Dr. Maggio is debatable, we decline the request for a COA on these
ineffective assistance of counsel claims.
V.
Jordan’s request for a COA is DENIED.
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JAMES L. DENNIS, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that petitioner-appellant Richard Gerald
Jordan’s ineffective-assistance-of-counsel claims are without plausible merit and
I concur in the majority’s denial of certificates of appealability for those claims.
I disagree with the majority, however, on Jordan’s prosecutorial-vindictiveness
claim, which I believe deserves encouragement to proceed further.
Over more than a decade, one Mississippi prosecutor sought three times
to impose the death penalty against Jordan, but each time a court, first the state
trial court, then this federal circuit court, and then the United States Supreme
Court, found error and reversed. After the third reversal, the prosecutor
acknowledged that, during Jordan’s time in prison during the past decade, he
has shown remorse, maintained a good behavior record, and made various efforts
to contribute to society despite his incarceration. The prosecutor agreed with
Jordan that, rather than the death penalty, a sentence of life in prison without
the possibility of parole was appropriate, and the state court sentenced Jordan
accordingly. Then, as a result of a subsequent Mississippi Supreme Court
decision, Lanier v. State, 635 So. 2d 813 (Miss. 1994), that addressed and struck
down a sentencing agreement essentially identical to Jordan’s own, it became
apparent that Jordan’s life-without-parole sentence was invalid under state law.
Jordan asked the state courts to remedy the error by changing his life-without-
parole sentence to, instead, life with the possibility of parole, which he contended
would be proper. In response, the prosecutor told the courts that neither life
with or without parole was appropriate: Now, because Jordan had challenged his
sentence, the prosecutor would accept nothing less than death, he said. Jordan
offered to plead guilty to, once again, a sentence of life without parole, but his
pleas were rebuffed. The prosecutor proceeded to trial, and Jordan received a
sentence of death.
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There is a good claim that these circumstances create a presumption of
prosecutorial vindictiveness under the doctrine of Blackledge v. Perry, 417 U.S.
21 (1974). The prosecutor had a “considerable stake” in Jordan accepting his
life-without-parole sentence without challenge and, when Jordan did lodge a
challenge, the prosecutor “upped the ante” by deciding that a life sentence of any
sort was no longer acceptable and only death would now suffice. For the reasons
that follow, I respectfully dissent from the majority’s denial of a certificate of
appealability on this claim.
I.
On January 12, 1976, Jordan abducted Edwina Marter from her home,
drove her to a secluded area in the woods north of Gulfport, Mississippi, and shot
her in the back of her head, killing her. During the more than two decades that
followed, the same lead prosecutor sought the death penalty against Jordan in
four separate trials.
First, in 1976, the year of the abduction and murder, Jordan was convicted
of capital murder and was then automatically sentenced to death under then-
existing Mississippi law. After the death sentence was imposed, the Mississippi
Supreme Court, in Jackson v. State, 337 So. 2d 1242 (Miss. 1976), mandated
bifurcated proceedings in capital murder cases, and Jordan’s trial court granted
him a new trial with bifurcated guilt and sentencing proceedings.
In the new trial, Jordan was prosecuted by the same prosecutor and again
convicted of capital murder and sentenced to death. This court, holding that the
jury was improperly instructed on the death penalty, set aside the death
sentence and afforded Jordan a new sentencing trial. Jordan v. Watkins, 681
F.2d 1067 (5th Cir. 1982).
In 1983, Jordan was again sentenced to death. This time, the United
States Supreme Court found error and vacated the death sentence. Jordan v.
Mississippi, 476 U.S. 1101 (1986) (vacating in light of Skipper v. South Carolina,
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476 U.S. 1 (1986)). The Mississippi Supreme Court remanded to the trial court
for a new sentencing trial. Jordan v. State, 518 So. 2d 1186 (Miss. 1987).
The planned resentencing never happened. Instead, in 1991, Jordan,
represented by his attorneys, and the state, represented by the same prosecutor,
but who had left state employment and entered private practice and was now
appearing again for the state as a special prosecutor, reached an agreement
under which Jordan would be sentenced to life imprisonment without parole in
exchange for his promise not to challenge that sentence. In support of the
agreement and the prosecutor’s decision to pursue a life without parole sentence
rather than death, the prosecutor, in a document titled “Stipulated
Circumstances Mitigating Against the Death Penalty for Richard Gerald
Jordan,” cited Jordan’s expressions of remorse, good behavior in prison, and
attempts to contribute to society in various ways during his incarceration:
1. That Richard Gerald Jordan has expressed sorrow
for this crime in previous court testimony.
...
5. That Richard Gerald Jordan has not had a discipline
record problem in the jail/prison system for the past 15
years, 11 months.
6. That while in prison Richard Gerald Jordan has
been creative and attempted to make significant
contributions to society through his ideas for inventions
to benefit businesses and society.
7. That while in prison Richard Gerald Jordan has
assisted bank and bank security personnel in devising
methods and approaches to prevent crimes against
banking personnel and their families.
8. That members of the religious community have
previously testified and are prepared to again testify to
the remorse of Richard Gerald Jordan for his crime and
to his commitment to personal improvement.
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9. That while in prison Richard Gerald Jordan has
been a positive force and assisted other prisoners.
In December 1991, Jordan was sentenced to life without parole pursuant to the
agreement between him and the special prosecutor.
However, there was a problem: At that time, the Mississippi sentencing
statutes allowed sentences of life with the possibility of parole for Jordan’s
circumstances but did not allow for life without parole. (Sentences of life without
parole were available only for “habitual offenders.” MISS. CODE ANN. § 99-19-83.)
Several years later, the problem in Jordan’s case would become apparent when
the Mississippi Supreme Court handed down its opinion in Lanier v. State, 635
So. 2d 813 (Miss. 1994), a case in which Jordan was not involved but which
addressed circumstances essentially identical to his own. In Lanier, the
Mississippi Supreme Court held that a sentencing agreement to life without
parole for a crime committed before that sentence was available under statutory
law is against public policy and “void ab initio,” meaning that the agreement is
invalid and “both parties are placed back in the positions which they occupied
prior to entering into the agreement.” Id. at 816-17. After Lanier, it became
clear that Jordan was serving an ultra vires sentence pursuant to an invalid
agreement.
In April 1994, acting pro se, Jordan filed a motion in the state trial court
contending that his sentencing agreement and the life-without-parole sentence
imposed thereunder were invalid under Lanier. He asked the court to remedy
the ultra vires sentence by modifying it from life without parole to instead life
with parole, which presumably would not have run afoul of Lanier given that it
was, under Mississippi statutory law, a permissible sentence for Jordan’s offense
of capital murder.
Before the court took any action on Jordan’s motion, the Mississippi
legislature amended the statutes to allow punishment of either death, life with
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parole, or life without parole for the offense of capital murder. See 1994 Miss.
Laws Ch. 566 (amending MISS. CODE ANN. § 97-3-21).
The state trial court denied in full Jordan’s motion to alter his life-without-
parole sentence to life with parole. Jordan, still pro se, appealed to the
Mississippi Supreme Court. The Mississippi Supreme Court agreed with Jordan
in part. The court agreed that Lanier controlled and, accordingly, Jordan’s
sentencing agreement and the life-without-parole sentence imposed thereunder
were invalid. Jordan v. State, No. 95-KP-113-SCT, 697 So. 2d 1190, slip op. at
4 (Miss. July 17, 1997). The Mississippi Supreme Court did not agree, however,
that the invalidity should be remedied by changing Jordan’s sentence to life with
parole. Rather, the Mississippi Supreme Court vacated Jordan’s sentence and
remanded to the trial court for resentencing, and the court went on to say that,
on remand, “the State has the right to seek the death penalty.” Id.
The same prosecutor, acting on behalf of the State, did just that. Jordan
pleaded with the prosecutor to reinstate the earlier agreement for a sentence of
life imprisonment without parole, which, given the state’s post-Lanier
legislation, 1994 Miss. Laws Ch. 566, would, he contended, now be permissible.
But the prosecutor declined. The prosecutor explained that, because Jordan
“violated” the first agreement by asking the court to change his earlier ultra
vires sentence, the prosecutor would not again enter into a plea agreement with
Jordan for a life sentence. See Jordan v. State, 786 So. 2d 987, 1000 (Miss. 2001)
(describing prosecutor’s representation). There is no indication in the record
that the circumstances that previously warranted a life sentence, including
Jordan’s remorse, good behavior, and efforts to contribute to society, had
changed. See Appellant’s Br. 26 (stating that the circumstances had not
changed).
In Jordan’s fourth sentencing trial in 1998, the same prosecutor tried the
case, and the jury sentenced Jordan to death. After exhausting his remedies in
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Mississippi state courts, Jordan sought federal habeas relief.1 On August 30,
2010, the district court denied relief on all of Jordan’s claims. Jordan v. Epps,
740 F. Supp. 2d 802 (S.D. Miss. 2010). The district court also denied Jordan’s
request for a certificate of appealability, required for appeal to this court. See
28 U.S.C. § 2253(c)(1)(A). Jordan now seeks from us the requisite permission to
appeal.
II.
We are not called upon to make a decision on the ultimate merits of
Jordan’s claim of prosecutorial vindictiveness. Rather, “a prisoner seeking a
[certificate of appealability] need only demonstrate ‘a substantial showing of the
denial of a constitutional right.’” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(quoting 28 U.S.C. § 2253(c)(2)). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Id. (citing
Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “Finally, any doubt as to whether
a [certificate] should issue in a death-penalty case must be resolved in favor of
the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005).
A.
“Vindictiveness” is a term of art referring to the violation of due process
that occurs when a governmental actor authorized to pursue or impose
punishment, including prosecutors, juries, and judges, retaliates against a
1
The Mississippi Supreme Court affirmed the conviction on direct appeal on April 26,
2001. Jordan v. State, 786 So. 2d 987 (Miss. 2001). In March 2005, the Mississippi Supreme
Court, holding that all of Jordan’s claims were without merit, denied Jordan’s application for
leave to proceed on his claims for state post-conviction relief. Jordan v. State, 912 So. 2d 800
(Miss. 2005).
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criminal defendant for exercising a legal right. Blackledge v. Perry, 417 U.S. 21
(1974) (prosecutor); Chaffin v. Stynchcombe, 412 U.S. 17 (1973) (jury); North
Carolina v. Pearce, 395 U.S. 711 (1969) (judge). Jordan’s claim here is of
prosecutorial vindictiveness, which can generally be established in two ways:
First, a defendant may prove actual vindictiveness by
presenting objective evidence that the prosecutor’s
actions were designed to punish a defendant for
asserting his legal rights. Second, in certain
circumstances, a defendant may show sufficient facts to
give rise to a presumption of vindictiveness.
United States v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008) (citations omitted).
Here, I focus on circumstances invoking a presumption of vindictiveness.2
The principal Supreme Court decision on prosecutorial vindictiveness is
Blackledge v. Perry. There, the defendant was first charged with and convicted
of misdemeanor assault in North Carolina District Court. Under then-existing
state law, a person convicted of a misdemeanor in District Court had a right to
trial de novo in North Carolina Superior Court upon filing a notice of appeal.
“The right to trial de novo is absolute, there being no need for the appellant to
allege error in the original proceeding. When an appeal is taken, the statutory
scheme provides that the slate is wiped clean; the prior conviction is annulled,
and the prosecution and the defense begin anew in Superior Court.” 417 U.S. at
22 (citing state law). Upon the misdemeanor assault conviction, the defendant
filed a notice of appeal. After the notice was filed and before any further
2
Jordan contends that, regardless of whether there is a presumption of prosecutorial
vindictiveness here, the prosecutor’s representation to the court, that he would not again
accept life imprisonment because Jordan had “violated” their earlier agreement, constitutes
an admission of retaliatory intent. It is debatable whether the prosecutor’s statement
constitutes such an admission. Regardless of whether it does, however, I think the possibility
of a presumption of retaliation warrants granting a certificate of appealability here, so I would
leave resolution of how to construe the prosecutor’s statement to the merits panel.
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proceedings began, the prosecutor obtained an indictment from a grand jury
charging the defendant with felony assault, which subjected the defendant to
greater punishment although the charge covered the same conduct as the initial
misdemeanor assault. The Supreme Court held that, in these circumstances,
there was a “realistic likelihood of ‘vindictiveness’”:
A prosecutor clearly has a considerable stake in
discouraging convicted misdemeanants from appealing
and thus obtaining a trial de novo in the Superior
Court, since such an appeal will clearly require
increased expenditures of prosecutorial resources before
the defendant’s conviction becomes final, and may even
result in a formerly convicted defendant’s going free.
And, if the prosecutor has the means readily at hand to
discourage such appeals—by “upping the ante” through
a felony indictment whenever a convicted
misdemeanant pursues his statutory appellate
remedy—the State can insure that only the most hardy
defendants will brave the hazards of a de novo trial.
Id. at 27-28. Because such a “realistic likelihood of ‘vindictiveness’” was
apparent on the face of the relevant circumstances, a presumption of
vindictiveness arose, the Court held. Id.3
The teaching of Blackledge is that, when the circumstances are such that
there appears to be a realistic likelihood of prosecutorial vindictiveness—viz., a
realistic likelihood that the prosecutor acted with a retaliatory motive because
3
The Court explained that the “rationale” for creating a presumption rule that is based
on the circumstances of the case and does not require “evidence” of vindictive intent was that,
“since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of
the right to appeal or collaterally attack his first conviction, due process also requires that a
defendant be freed of apprehension of such a retaliatory motivation on the part of the
[prosecutor].” Id. at 28 (quoting Pearce, 395 U.S. at 725). “A person convicted of an offense
is entitled to pursue his statutory right to trial de novo, without apprehension that the State
will retaliate by substituting a more serious charge for the original one, thus subjecting him
to a significantly increased potential period of incarceration.” Id.
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of the defendant’s exercise of a legal right—the presumption of vindictiveness
arises. See United States v. Ward, 757 F.2d 616, 619 (5th Cir. 1985). Blackledge
identified two elements for establishing circumstances that present a realistic
likelihood of prosecutorial vindictiveness:
The first element is that the prosecutor has a “considerable stake” in
maintaining the status quo and discouraging action that could upset such status
quo. Blackledge, 417 U.S. at 27. When the prosecutor pursues and receives a
desired outcome in court (i.e., in Blackledge, conviction for misdemeanor
assault), the prosecutor has a considerable stake in discouraging the defendant
from taking action that risks upsetting that outcome (i.e., appealing). Id.; see
United States v. Goodwin, 457 U.S. 368, 376-77 (1982) (“[Blackledge] reflect[s]
a recognition by the Court of the institutional bias inherent in the judicial
system against the retrial of issues that have already been decided,” which
“might” “subconsciously motivate a vindictive prosecutorial or judicial response
to a defendant’s exercise of his right to obtain a retrial of a decided question.”);
United States v. LaDeau, 734 F.3d 561, 569-70 (6th Cir. 2013) (“When the
prosecution is forced to do over what it thought it had already done correctly, . . .
the prosecution’s stake in discouraging the defendant’s exercise of a right may
be ‘considerable.’” (internal quotation marks and citations omitted)).
The second element is that, in such circumstances where the prosecutor
has a considerable stake in discouraging the defendant from taking action that
could upset the status quo, the defendant then takes such action and the
prosecutor responds by “upping the ante.” Blackledge, 417 U.S. at 27-28. The
prosecutor “ups the ante” when he imposes, or subjects the defendant to the risk
of, harsher punishment, for example, by charging the defendant with a more
serious offense than the one first charged, Blackledge, 417 U.S. at 27-28 (first
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misdemeanor, then felony), by manipulating applicable sentencing factors,
United States v. Khoury, 62 F.3d 1138, 1142 (9th Cir. 1995) (withdrawal of
motion for sentencing reduction), or by taking other “action detrimental to the
defendant,” Goodwin, 457 U.S. at 373. See United States v. Herrera, 640 F.2d
958, 961 & n.6 (9th Cir. 1981) (stating that, “[w]hen the defendant is given a
heavier sentence or when the charges against him are increased in retaliation
for the exercise of some right, the defendant has clearly been penalized for his
action,” and “[t]here may [also] be other factual settings in which a finding of
vindictive prosecution would be justified”).4
Jordan presents a compelling case that both elements of vindictiveness are
present here. Jordan’s prosecutor acknowledged Jordan’s expressions of
remorse, good behavior, and efforts to contribute to society and, in recognition
of those factors mitigating against the death penalty, he sought to have the state
court sentence Jordan to life without parole, and the court obliged. The
prosecutor received from the court the result he asked for. Thus, the prosecutor
had a “considerable stake” in deterring Jordan from upsetting that result. See
Blackledge, 417 U.S. at 27. But Jordan did risk upsetting, and ultimately did
upset, that result when, upon it becoming apparent as a result of Lanier that his
life-without-parole sentence was ultra vires under Mississippi law, he exercised
his right to petition the state court to remedy the error. The prosecutor then
4
The presumption of vindictiveness, however, will not arise when the circumstances
are such that the prosecutor’s actions are reasonably justified by an innocuous explanation.
Blackledge, 417 U.S. at 29 n.7 (“This would clearly be a different case if the State had shown
that it was impossible to proceed on the more serious charge at the outset”); United States v.
Krezdorn, 718 F.2d 1360, 1365 (5th Cir. 1983) (en banc) (“If any objective event or combination
of events in those proceedings should indicate to a reasonable minded defendant that the
prosecutor’s decision to increase the severity of charges was motivated by some purpose other
than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is
created.”)
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“upped the ante” by insisting that a life sentence of any sort would not suffice,
and now, only death would be adequate. See id. at 27-28. Jordan offered,
repeatedly, to plead guilty to, once again, a life-without-parole sentence, but the
prosecutor declined and insisted on calling a jury and proceeding to trial for
death. The prosecutor never contended, and the State does not contend now,
that Jordan’s expressions of remorse, good behavior, and efforts to contribute to
society had somehow changed to no longer justify, as they once did, a life
sentence. Compare Khoury, 62 F.3d at 1142 (prosecutor rescinded motion for
sentencing reduction for acceptance of responsibility and, “the government has
pointed to no intervening circumstances that diminished the usefulness of what
they previously considered to be substantial assistance”). These circumstances
present a strong likelihood of vindictiveness. “[I]f the prosecutor has the means
readily at hand to discourage” petitions to the court to remedy plainly ultra vires
sentences, “the State can insure that only the most hardy defendants” in
positions like Jordan’s “will brave the hazards of” exercising their legal right.
Blackledge, 417 U.S. at 27-28.
The Ninth Circuit, sitting en banc, addressed substantially similar
circumstances and granted the defendant relief in Adamson v. Ricketts, 865 F.2d
1011 (9th Cir. 1988). There, the defendant was first charged with first-degree
murder. He and the prosecutor entered into a plea agreement under which he
agreed to plead guilty to second-degree murder and to testify against two other
individuals who had allegedly solicited him to commit the murder. The
prosecutor agreed that, in exchange for the defendant’s testimony, he should
receive a term-of-years sentence, and the Arizona state trial court accepted the
agreement. During the following years, the defendant carried out his obligation
to testify against the others during their prosecutions, and they were both
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convicted. However, the Arizona Supreme Court found error, reversed the
convictions of the two, and remanded for new trials. The prosecutor told the
defendant that he was again required to testify against the two during their
retrials, but the defendant declined, contending that the plea agreement only
required his initial testimony and did not require additional testimony on retrial.
The defendant offered, however, to testify again on retrial if the prosecutor
would, in exchange, agree to his release from prison. The prosecutor continued
to maintain that the defendant’s additional testimony was mandated by the plea
agreement and threatened that, if the defendant did not testify on retrial, the
prosecutor would reinstate the first-degree murder charge against him and
would seek the death penalty. The defendant resisted testifying and argued his
interpretation of the plea agreement to the state courts. The Arizona Supreme
Court held that the defendant breached the plea agreement by refusing to
testify, and, thus, the defendant’s conviction and sentence were vacated, and the
prosecutor could proceed to seek the death penalty against the defendant, as
threatened. Id. (citing Adamson v. Superior Court, 611 P.2d 932, 937 (Ariz.
1980)). After the Arizona Supreme Court rejected his interpretation of the plea
agreement, the defendant offered to testify on retrial and requested that the
prosecutor reinstate the prior status quo by agreeing to him being sentenced,
once again, to a term of years. But the prosecutor insisted on pursuing on the
death penalty.
The defendant argued to the Ninth Circuit that the “decisions to seek and
impose the death penalty against him for the same acts that earlier merited a
term of years were vindictively motivated,” and the Ninth Circuit agreed:
The circumstances surrounding the State’s decision to
seek the death penalty for [the defendant] clearly
reflect the real likelihood of actual vindictiveness and
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thus give rise to a presumption of vindictiveness. The
State sought the death penalty against [the defendant]
for the very same conduct for which it had three years
earlier found a lesser charge and a [term of years
sentence] appropriate. The same sovereign and the
same set of facts were involved in both decisions. Most
importantly, the decision to file the increased charges
directly followed [the defendant’s] assertion of his
constitutional right against self-incrimination. These
circumstances create the appearance that the State,
faced with a disappointing result, acted so as to “up the
ante” for the defendant.
Id. at 1018-19 (internal quotation marks, alteration, and citations omitted).
“Moreover, the State explicitly rejected [the defendant’s] offer—made after the
Arizona Supreme Court rejected his interpretation of the plea agreement’s
terms—to testify against [the other two] under the original terms of the
agreement. Instead, the State chose to still pursue the death penalty against
[the defendant] while letting [the other two] go untried and unpunished. These
facts only increase the likelihood of actual vindictiveness and add to the
appearance of an improper motive.” Id. at 1018 n.7.
The material facts in Adamson and Jordan’s case are essentially identical.
In both cases, the prosecutors asked the courts to impose sentences other than
death, and the courts obliged. Then, the defendants petitioned their state courts
to give them some advantage, but the courts ruled against them. And then, the
defendants offered to return to the prior status quo, but the prosecutors rebuffed
the plea offers and insisted on proceeding to trial to seek death. According to our
sister circuit, sitting en banc, in these circumstances, “a presumption of
vindictiveness is warranted.” Id. at 1018. The question before us, in this
request for a certificate of appealability, is whether “jurists of reason could
disagree” as to the merits of the claim. Miller-El, 537 U.S. at 327. In light of our
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en banc sister circuit’s ruling, it is apparent that the merits are indeed
debatable, to say the least. Jordan, therefore, should receive the requested
certificate.
B.
There is an additional circumstance in this case that I believe warrants
serious consideration. Jordan points out that he was not the only Mississippi
prisoner whose life-without-parole sentence was vacated under Lanier: In
addition to Lanier himself, there were two others, Patterson and Stevenson. See
Patterson v. State, 660 So. 2d 966, 969 (Miss. 1995) (vacating life-without-parole
sentence under Lanier); Stevenson v. State, 674 So. 2d 501, 506 (Miss. 1996)
(same). These other prisoners, Lanier, Patterson, and Stevenson, like Jordan,
all requested that the Mississippi courts change their life-without-parole
sentences to life with parole. See Lanier, 635 So. 2d at 815; Patterson, 660 So.
2d at 966; Stevenson, 674 So. 2d at 502. They all, like Jordan, committed
heinous crimes. See Lanier, 635 So. 2d at 815 (kidnapping, aggravated assault,
and murder of police officer); Patterson, 660 So. 2d at 967 (kidnapping and
murder); Stevenson, 674 So. 2d at 502 (murder of deputy sheriff, committed
while jailed, followed by escape). But, Jordan says, despite such similar
circumstances, it was only him and not the others who was resentenced to death
after their sentences were vacated under Lanier. The difference between him
and the others, he says, is that their cases were handled by different prosecutors
and his case was handled by the special prosecutor who, although an attorney
in private practice at the relevant time, appeared on behalf of the state for
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Jordan’s case and who had worked on the case for decades. Appellant’s Br. 28.
The State’s brief offers no explanation at all for this discrepancy.5
This discrepancy, which may have an innocuous explanation, although
none has yet been offered, is troubling. It adds to the perception that the special
prosecutor’s pursuit of the death penalty against Jordan was not motivated by
only legitimate interests but was rather influenced in substantial part by the
personal motives of a prosecutor who had spent decades working on the case,
had received a result he sought, and who then faced the possibility of that result
being upended. Compare Adamson, 865 F.2d at 1018 n.7 (facts that the State
pursued the death penalty against the defendant while allowing two others
allegedly complicit in the same murder to “go untried and unpunished” “only
increase the likelihood of actual vindictiveness and add to the appearance of an
improper motive”). It is a basic and uncontroversial principle that the death
penalty should turn on conduct and moral culpability, not the arbitrary
happenstance of which prosecutor is assigned to the case. Cf. Eddmonds v.
Illinois, 469 U.S. 894, 896 (1984) (Marshall, J., dissenting) (“[T]here are serious
questions about the constitutionality of a scheme that gives the prosecutor the
unbridled discretion to select, from the group of individuals convicted of an
offense punishable by death, the subgroup that will be considered for death.”).
In a case such as this, with colorable allegations that death will be imposed not
only arbitrarily, but vindictively too, we should grant permission for a full appeal
on the merits.
5
The closest the State’s brief gets to addressing the issue is the following comment:
“There are at least two capital defendants who entered into the same type agreements serving
their life without parole sentence who have never challenged the life without parole provision
in their plea agreement.” Appellee’s Br. 27 n.3.
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III.
The majority concludes that Deloney v. Estelle, 713 F.2d 1080 (5th Cir.
1983), controls and, as applied here, results in the denial of Jordan’s claim. It
does not. In Deloney, the defendant entered into a plea agreement with the
prosecutor to have the charges against him reduced. The defendant then
contended that he had been “coerced” into the plea agreement and he asked to
withdraw his guilty plea and proceed to trial, where the prosecutor would have
to prove his guilt. The court granted the request and Deloney then went to trial
on the original, pre-plea-bargain charges. After he was convicted, he contended
that it was vindictive for the prosecutor to try him on the original, pre-plea-
bargain charges rather than the lesser charges that were offered during plea
bargaining. Id. at 1085 (“Deloney’s claim reduces itself to a bootstrap device in
three steps: First, plea bargain to get the charges cut down. Second, get the
plea bargain set aside for lack of understanding and coercion of his agreement
by his attorney. Third, insist that it would be prosecutorial vindictiveness now
to be prosecuted at the same level of jeopardy to punishment that the original
indictments called for.”). Thus, the question presented was, may a defendant
use the prosecutorial vindictiveness doctrine to insist on receiving the benefits
of an offer made during plea bargaining when the defendant does not plead
guilty but instead proceeds to trial? We held, unsurprisingly, that “[t]he law does
not find this to be prosecutorial vindictiveness.” Id. Our opinion in Ehl v.
Estelle, 656 F.2d 166, 171 (5th Cir. 1981), which we cited in Deloney, 713 F.2d
at 1085 n.9, explains the basic rationale well:
We have not found a case from any jurisdiction that
holds that a defendant can accept a plea bargain, take
back his part of the bargain, insist upon a trial on the
merits, and yet bind the prosecutor, and thus the Court,
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on the original promised recommendation of
punishment after the prosecutor has lost all benefits of
the bargain. To permit this situation would undercut
the entire purpose and aim of the plea bargaining
process.
656 F.2d at 171 (emphasis added).
Jordan has done no such thing. True, Jordan lodged a motion with the
state court attempting to change his sentence. But, during the relevant events,
Jordan never sought to hold the government to its burden of proof and thus take
from the government its “benefits of the bargain.” His motion for sentence
modification presented a purely legal argument (viz., that his sentence was ultra
vires under Lanier), and one that was correct. After the Mississippi Supreme
Court agreed with Jordan’s legal argument but did not afford him the remedy
he requested, Jordan still did not seek to hold the prosecutor to the government’s
burden of proof. Rather, he sought to reinstate the prior life sentence the
prosecutor had already represented to the court was appropriate because of
Jordan’s individual circumstances, including his remorse and good
behavior—circumstances that nobody contended had changed. It was the
prosecutor, not Jordan, who abandoned the government’s previous benefits of the
bargain and insisted upon a trial on the merits . Hence, Deloney does not apply
here, and to hold that it does is to extend the decision beyond its reach. Jordan’s
right to petition the courts for redress is precisely the sort of legal right that
should be protected against retaliation by the due process clause as interpreted
in Blackledge.
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IV.
Jordan has shown sufficient merit to the prosecutorial vindictiveness claim
to warrant his appeal being considered on the full merits. I respectfully dissent
from the majority’s denial of a certificate of appealability on this claim.
44