Jordan v. Secretary, Dept. of Corrections

• Decision Date: 14 May 2007
• Docket Number: No. 05-14736.,05-14736.
• Citation: 485 F.3d 1351
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Keith Lamont JORDAN, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.

485 F.3d 1351

Keith Lamont JORDAN, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.

No. 05-14736.

United States Court of Appeals, Eleventh Circuit.

May 14, 2007.

George Allen Couture, Rosemary T. Cakmis, Fed. Pub. Defenders, Orlando, FL, Maurice C. Grant, II, Fed. Pub Def., Jacksonville, FL, for Jordan.

Edward C. Hill, Jr., Trisha Meggs Pate, Sheron L. Wells, Tallahassee, FL, for Respondents-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before CARNES, WILSON and HILL, Circuit Judges.

CARNES, Circuit Judge:

Keith Lamont Jordan is serving sentences of life imprisonment and twenty-two years following his conviction in Florida state court for first degree murder, attempted first degree murder, and armed robbery. After the First District Court of Appeal affirmed his conviction, Jordan v. State, 696 So.2d 344 (Fla. 1st DCA 1997) (table), Jordan filed a habeas corpus petition in that same appellate court, which was denied, and then filed in the state trial court a collateral attack on his conviction under Florida Rule of Criminal Procedure 3.850, which was also denied.

Thereafter, in September of 2000, Jordan filed his first petition in federal court pursuant to 28 U.S.C. § 2254. The district court dismissed it with prejudice as untimely. He then filed another Rule 3.850 motion for collateral relief in the state trial court. After that motion was denied, Jordan in October of 2003 filed pro se an application in this Court seeking an order permitting him to file a second or successive § 2254 petition in the district court. His application said that he wanted to raise in the petition a claim of actual innocence based on newly discovered evidence.

Jordan's actual innocence claim was based on the declaration of two convicted felons he met in prison who said that they had seen someone else commit the crime and on Jordan's own declaration that he did not do it. Jordan sought to explain away his confession as the product of coercion by declaring that he had confessed only because the detectives had threatened to prosecute his mother if he didn't. A panel of this Court found that Jordan had made out a prima facie case under 28 U.S.C. § 2244(b)(2)(B) for filing a second or successive petition in the district court and entered an order permitting him to do so. (Order, Nov. 17, 2003.)

Jordan then filed his second § 2254 petition in the district court, which asserted a claim of actual innocence. He also asked for the assistance of counsel, and the district court appointed the Federal Public Defender to represent him. Acting as Jordan's counsel, an Assistant Federal Public Defender filed in the district court a memorandum of law in support of the petition for writ of habeas corpus. That memorandum conceded, on behalf of Jordan, that a freestanding claim of actual innocence did not provide a basis for federal habeas relief. This is that concession:

A bare claim of actual innocence based upon newly discovered evidence, without "an independent constitutional violation" does not establish a basis for federal habeas relief. Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). While "the federal court must grant an evidentiary hearing" in the presence of newly discovered evidence, the "evidence must bear upon the constitutionality of the applicant's detention." Id., quoting Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770. "[T]he existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." Id.

(Petr.'s Mem. of Law in Supp. of Pet. for Writ of Habeas Corpus 2, Feb. 23, 2004.)

Immediately after making that concession, the memorandum argued that Jordan's petition did assert a constitutional claim, which it identified as the allegations that his confession had been coerced and, as a result, its use against him at trial had violated the Fifth and Fourteenth Amendments to the Constitution. This is how the memorandum explained that theory:

In Mr. Jordan's case, the petition states the grounds for habeas relief as being "newly discovered evidence supporting claim of actual innocence." At first blush, looking simply at the title of the claim, one might prematurely determine that Herrera and Townsend preclude relief. However, upon review of the facts supporting the claim, Mr. Jordan identifies "an independent constitutional violation." Mr. Jordan claims that his confession was [in]voluntary. Within a declaration attached to the petition, Mr. Jordan states the reason for making the statement was the result of the detectives telling him that his "mother could be charged for criminal negligence since he was a minor." Exhibit C of the Petition. Mr. Jordan further states in the declaration that he "did not provide any written or verbal details" about the incident to the detectives. In short, Mr. Jordan claims that his adoption of the statement drafted by detectives was coerced and not a true statement of his involvement in the incident. As such, Mr. Jordan claims that the detectives violated his rights against self-incrimination as guaranteed by the Fifth Amendment and his due process rights as guaranteed by the Fourteenth Amendment.

Mr. Jordan's "claim of innocence is thus `not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'" Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), quoting Herrera, 506 U.S. at 404, 113 S.Ct. 853. By alleging the detectives coerced him into adopting a false confession, Mr. Jordan has set forth a claim of "an independent constitutional violation."

(Id. at 2-3.) After explaining that Jordan's substantive claim was not actual innocence but coerced confession, the remainder of the memorandum argued that Jordan's confession actually had been coerced. (Id. at 3-8.)

Sometime later, the district court issued an order instructing the parties to brief the question whether "there is a federal and/or state claim of substantive actual innocence available to Petitioner in either this Court or in the state courts." (Order, Jan. 13, 2005.) The brief that Jordan's counsel filed in response stated that Jordan no longer had available to him in state court a substantive claim of actual innocence, because when he had attempted to file that claim the state courts had held it was barred as untimely, successive, and not based on newly discovered evidence. (Pet'r Jordan's Br. in Resp. to Ct. Order of Jan. 13, 2005 at 2-5, Feb. 2, 2005.)

On the question of whether Jordan could obtain relief in federal court on a substantive claim of actual innocence, his brief was ambivalent. (Id. at 5-7.) It conceded on one hand that language in the majority opinion in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), "appears to bar habeas claims based solely on free-standing assertions of actual innocence," but asserted on the other hand that "the concurring opinion of Justices O'Connor and Kennedy makes clear that a majority of justices agree that habeas relief would be warranted upon a truly persuasive showing of actual innocence, at least in a capital case." (Id. at 5.) The brief noted that other courts were divided on the issue, (id. at 5-6), and suggested that this Court's action in granting Jordan permission to file a successive petition "would seem to indicate" that it "believes that his claim is adequate to deserve encouragement to proceed further," (id. at 7). The brief argued that the district court should, in any event, also construe Jordan's actual innocence claim as a Schlup v. Delo, 513 U.S. 298, 325, 115 S.Ct. 851, 866, 130 L.Ed.2d 808 (1995), gateway claim of innocence and that doing so would permit Jordan to litigate his otherwise procedurally defaulted coerced confession claim. (Id. at 7.)

The district court dismissed with prejudice Jordan's petition for a writ of habeas corpus. In doing so, it pointed out that although Jordan had attacked the admissibility of his confession on at least four occasions in state court, and had even testified in a pretrial hearing in an attempt to have the confession suppressed, he never suggested to the state courts that the detectives had threatened to prosecute his mother. (Order 14-16, July 22, 2005.) Jordan had failed to raise this specific claim in state court even though he obviously knew all along whatever it was that the detectives had said to him. For that reason, the district court held that this coerced confession claim was procedurally barred. (Id. at 15-16.)

The district court held that the claim was also barred by the second or successive petition rules contained in § 2244(b)(2), because Jordan had known at the time he filed his first § 2254 petition everything the detectives had said to him before he confessed. That fact prevented him from fitting any claim based on those allegations into the § 2244(b)(2)(B)(i) exception. (Id. at 24-25.)

To the extent that Jordan was pursuing an actual innocence claim in his second § 2254 petition, the district court ruled that claim was barred because Jordan could have discovered through the exercise of due diligence the two allegedly new witnesses before he filed the first petition. (Id. at 20-24.)

After the district court dismissed Jordan's second or successive § 2254 petition with prejudice, he applied for a COA to permit him to appeal, see § 2253(c). The district court denied the application, (Order, Sept. 12, 2005), but a judge of this Court granted a COA, specifying however, that it was granted "on the following issues only":

1. Whether a petitioner can bring a new claim in his second or successive 28 U.S.C. § 2254 habeas petition when that claim was not before us in our order granting him leave to file a successive § 2254 p...