Jordan v. Epps

Citation756 F.3d 395
Decision Date25 June 2014
Docket NumberNo. 10–70030.,10–70030.
PartiesRichard JORDAN, Petitioner–Appellant, v. Christopher B. EPPS, Commissioner, Mississippi Department of Corrections, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

756 F.3d 395

Richard JORDAN, Petitioner–Appellant,
v.
Christopher B. EPPS, Commissioner, Mississippi Department of Corrections, Respondent–Appellee.

No. 10–70030.

United States Court of Appeals,
Fifth Circuit.

June 25, 2014.


[756 F.3d 398]


David Paul Voisin, Jackson, MS, for Petitioner–Appellant.

Marvin Luther White, Jr., Esq., Assistant Attorney General, Office of the Attorney General, Jackson, MS, for 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 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.

[756 F.3d 399]

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, 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, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). As a result, the trial court granted Jordan a new trial with bifurcated guilt and sentencing proceedings.

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

[756 F.3d 400]

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 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

[756 F.3d 401]

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].”

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, 106 S.Ct. 1942, 90 L.Ed.2d 352 (1986) (relying on Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 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...

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