Jordan v. Thigpen

• Citation: 688 F.2d 395
• Decision Date: 07 October 1982
• Docket Number: No. 81-4172,81-4172
• Parties: Richard Gerald JORDAN, Petitioner-Appellant, v. Morris L. THIGPEN, Commissioner, Mississippi Department of Corrections et al., Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 395

688 F.2d 395

Richard Gerald JORDAN, Petitioner-Appellant, v. Morris L. THIGPEN, Commissioner, Mississippi Department of

Corrections et al., Respondents-Appellees.

No. 81-4172.

United States Court of Appeals,

Fifth Circuit.

Oct. 7, 1982.

Wilmer, Cutler & Pickering, James T. Kilbreth, III, Washington, D. C., Joseph P Hudson, Gulfport, Miss., Timothy N. Black, Washington, D. C., Judith A. Reed, New York City, Levi & Denham, Earl L. Denham, Ocean Springs, Miss., for petitioner-appellant.

William S. Boyd, III, Sp. Asst. Atty. Gen., Jackson, Miss., for respondents-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion August 6, 1982, 5 Cir., 1982, 681 F.2d 1067).

Before BROWN and RANDALL, Circuit Judges, and DUPLANTIER ^*, District Judge.

PER CURIAM:

The Petition for Rehearing is DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the Suggestion for Rehearing En Banc is DENIED.

The petition for panel rehearing and suggestion for rehearing en banc filed by the Respondents-Appellees (the "State") argues that the panel has misconstrued Jackson v. State, 337 So.2d 1242 (Miss.1976), and the instructions given the jury during the sentencing phase of Petitioner-Appellant's trial in holding that such instructions failed to "channel the sentencer's discretion by 'clear and objective standards' " and did not "provide 'specific and detailed guidance' " as mandated by Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Specifically, the State argues that it has understood Jackson to have restricted and thereby defined the aggravating circumstances to the statutory offense committed by a defendant and the defendant's prior record of criminal convictions. So understood, the State argues, the Mississippi capital sentencing scheme, as construed by the Mississippi Supreme Court in Jackson, is closely akin, if not identical, to the Texas capital sentencing scheme found by the Supreme Court of the United States in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), to be constitutional.

There is no question but that the Mississippi Supreme Court, in reformulating Mississippi's capital sentencing procedures in Jackson, relied heavily upon Jurek. But the procedures formulated in Jackson, as applied in Petitioner's trial, are not the same as the Texas capital sentencing procedures found to be constitutional in Jurek, and the difference between them underlies the panel's remand with instructions to issue the writ.

In Jurek, the Supreme Court noted that

"(w)hile Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. See McGautha v. California, 402 U.S. 183, 206 n.16 (91 S.Ct. 1454, 1466 n.16, 28 L.Ed.2d 711) (1971); Model Penal Code § 201.6, Comment 3, pp. 71-72 (Tent. Draft No. 9, 1959). In fact, each of the five classes of murders made capital by the Texas statute is encompassed in Georgia and Florida by one or more of their aggravating circumstances.... Thus, in essence, the Texas statute requires that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed. So far as consideration of aggravating circumstances is concerned, therefore, the principal difference between Texas and the other two States is that the death penalty is an available sentencing option-even potentially-for a smaller class of murders in Texas. Otherwise, the statutes are similar. Each requires the sentencing authority to focus on the particularized nature of the crime.

Jurek, 428 U.S. at 270-71, 96 S.Ct. at 2955. Focusing on that language in Jurek, the Mississippi Supreme Court in Jackson held that the State of Mississippi had a similar statutory scheme:

Although Mississippi has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of instances for which a death sentence may ever be imposed serves the same purpose just as it did in Texas. In essence, the Mississippi statutes require that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed.

Jackson, 337 So.2d at 1254. But, as noted in the panel opinion (681 F.2d at 1077), the Mississippi Court then went...