Jordan v. Fisher , 192 L. Ed. 2d 948 ( 2015 )

Cite as: 576 U. S. ____ (2015) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
RICHARD GERALD JORDAN v. MARSHALL L.
FISHER, COMMISSIONER, MISSISSIPPI
DEPARTMENT OF CORRECTIONS
ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 14–8035. Decided June 29, 2015
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
and JUSTICE KAGAN join, dissenting from the denial of
certiorari.
Three times, the same prosecutor sought and obtained a
death sentence against petitioner Richard Jordan. And
each time, a court vacated that sentence. After Jordan’s
third successful appeal, the prosecutor entered into a plea
agreement whereby Jordan would receive a sentence of life
without the possibility of parole. When the Mississippi
Supreme Court later invalidated that agreement, Jordan
requested that the prosecutor reinstate the life-without-
parole deal through a new plea. The prosecutor refused.
Jordan was then retried and again sentenced to death.
Jordan applied for federal habeas corpus relief on the
ground that the prosecutor’s decision to seek the death
penalty after having agreed to a lesser sentence was un-
constitutionally vindictive. The District Court denied
Jordan’s petition, and the Court of Appeals for the Fifth
Circuit, in a divided decision, denied Jordan’s request for a
certificate of appealability (COA). Because the Fifth
Circuit clearly misapplied our precedents regarding the
issuance of a COA, I would grant Jordan’s petition and
summarily reverse the Fifth Circuit’s judgment.
2 JORDAN v. FISHER
SOTOMAYOR, J., dissenting
I
A
In 1976, Jordan was arrested for the abduction and
murder of Edwina Marter. Jackson County Assistant
District Attorney Joe Sam Owen led the prosecution. The
jury convicted Jordan of capital murder, and, under then-
applicable Mississippi law, he automatically received a
sentence of death. After Jordan’s sentence was imposed,
however, the Mississippi Supreme Court held that auto-
matic death sentences violated the Eighth Amendment.
See Jackson v. State, 337 So. 2d 1242, 1251–1253 (1976)
(citing Gregg v. Georgia, 428 U.S. 153 (1976) (joint opin-
ion of Stewart, Powell, and Stevens, JJ.)). Jordan was
accordingly granted a new trial.
Owen continued to serve as the lead prosecutor at Jor-
dan’s second trial. Jordan was again convicted of capital
murder and sentenced to death. The Fifth Circuit later
determined, however, that the jury had been improperly
instructed on the imposition of the death penalty. Jordan
v. Watkins, 681 F.2d 1067 (1982). The court therefore set
aside Jordan’s sentence.
Jordan’s new sentencing trial was held in 1983. By this
point, Owen had left the district attorney’s office for pri-
vate practice. But at the behest of Marter’s family, Owen
agreed to represent the State as a special prosecutor. A
jury once more sentenced Jordan to death, but this Court
subsequently vacated the decision upholding that sentence
and remanded for reconsideration in light of Skipper v.
South Carolina, 476 U.S. 1 (1986). See Jordan v. Missis-
sippi, 476 U.S. 1101 (1986).
Rather than pursue yet another sentencing trial, Owen
entered into a plea agreement with Jordan: Jordan would
be sentenced to life without the possibility of parole in
exchange for his promise not to challenge that sentence.
In support of the agreement, Owen stipulated to several
mitigating circumstances, including Jordan’s remorse, his
Cite as: 576 U. S. ____ (2015) 3
SOTOMAYOR, J., dissenting
record of honorable service and disability incurred in the
military during the Vietnam War, his good behavior in
prison, and his significant contributions to society while
incarcerated. 1 Postconviction Record 20–21. The trial
court accepted the plea and, in December 1991, Jordan
was sentenced to life without parole.
As it turned out, this sentence, too, was defective. At
the time the parties reached their plea agreement, Missis-
sippi’s sentencing statutes authorized a term of life with-
out parole only for those defendants who—unlike Jordan—
had been found to be habitual offenders. Citing this statu-
tory gap, the Mississippi Supreme Court held in an unre-
lated case that a plea agreement materially identical to
Jordan’s violated Mississippi public policy. Lanier v.
State, 635 So. 2d 813 (1994). Such agreements, the court
explained, were “void ab initio,” and thus the parties were
“placed back in the positions which they occupied prior to
entering into the agreement.” Id., at 816–817.
Following the decision in Lanier, Jordan filed a pro se
motion with the trial court seeking to remedy his unlawful
sentence by changing its term from life without parole to
life with the possibility of parole. While the motion was
pending, the Mississippi Legislature amended the State’s
criminal code to permit sentences of life without parole for
all capital murder convictions. See 1994 Miss. Laws p.
851 (amending Miss. Code. Ann. §97–3–21). The Missis-
sippi Supreme Court ultimately agreed with Jordan that
his sentence was invalid under Lanier and remanded the
case for resentencing. Jordan v. State, 697 So. 2d 1190
(1997) (table).
On remand, Jordan asked Owen (reprising his role as
special prosecutor) to reinstate their earlier life-without-
parole agreement based on the recent amendment to
Mississippi law. Jordan, in return, would agree to waive
his right to challenge the retroactive application of that
amendment to his case. Jordan had good reason to believe
4 JORDAN v. FISHER
SOTOMAYOR, J., dissenting
that his request would be granted: Three other Mississippi
capital defendants had successfully petitioned to have
their plea agreements invalidated under the logic of La-
nier. Each had committed crimes at least as serious as
Jordan’s,1 and each had received a life sentence after their
successful appeals. Yet Owen refused to enter into the
same agreement he had previously accepted, instead
seeking the death penalty at a new sentencing trial.
Owen later explained that he had declined to negotiate
because he felt Jordan had violated their original agree-
ment by asking the trial court to modify his sentence. See
Jordan v. State, 786 So. 2d 987, 1000 (Miss. 2001).
Jordan filed a motion contending that Owen had sought
the death penalty as retaliation for Jordan’s exercise of his
legal right to seek resentencing under Lanier. See Black-
ledge v. Perry, 417 U.S. 21, 28–29 (1974) (recognizing the
Due Process Clause’s prohibition of prosecutorial vindic-
tiveness). The trial court denied the motion, and Jordan
received a death sentence.
Jordan continued to pursue his prosecutorial vindictive-
ness claim on direct appeal to the Mississippi Supreme
Court. That court rejected Jordan’s argument, noting,
among other things, that its previous decision in Jordan’s
case had left open the possibility that Owen could seek the
death penalty. Jordan v. State, 786 So. 2d, at 1001. Jus-
tice Banks dissented, contending that Jordan’s allegations
were sufficiently troubling to merit an evidentiary hear-
ing. Id., at 1031–1032.
B
After exhausting his postconviction remedies in the
state courts, Jordan initiated a federal habeas corpus
——————
1 See
Lanier v. State, 635 So. 2d 813, 815 (Miss. 1994) (assaulting,
kidnaping, and murdering a police officer); Stevenson v. State, 674
So. 2d 501, 502 (Miss. 1996) (stabbing to death a prison deputy); Patter-
son v. State, 660 So. 2d 966, 967 (Miss. 1995) (kidnaping and murder).
Cite as: 576 U. S. ____ (2015) 5
SOTOMAYOR, J., dissenting
proceeding in the Southern District of Mississippi. The
District Court denied relief on each of the claims in Jor-
dan’s petition, including his vindictiveness claim. Jordan
v. Epps, 740 F. Supp. 2d 802, 819 (2010). With respect to
that claim, the District Court opined that Owen could not
have been vindictive because he “did not substitute a
different charge for the charge that was originally im-
posed, nor did he seek a different penalty than that origi-
nally sought.” Ibid. The District Court also declined to
issue a COA. App. to Pet. for Cert. 149a.
Jordan renewed his efforts to obtain a COA on his vin-
dictiveness claim in an application to the Fifth Circuit, but
the court denied the request. Jordan v. Epps, 756 F.3d
395 (2014). The Fifth Circuit held that Jordan had
“fail[ed] to prove” actual vindictiveness by Owen because
“it is not vindictive for a prosecutor to follow through on a
threat made during plea negotiations.” Id., at 406 (citing
Bordenkircher v. Hayes, 434 U.S. 357, 363–364 (1978)).
The court further held that its decision in Deloney v. Es-
telle, 713 F.2d 1080 (1983), precluded it from applying a
presumption of vindictiveness. Deloney, the court rea-
soned, stood for the proposition that there could be no
claim for prosecutorial vindictiveness “absent an increase
in charges beyond those raised in the original indictment.”
756 F.3d, at 408.
In rejecting Jordan’s legal arguments, the Fifth Circuit
acknowledged that the Ninth Circuit, sitting en banc, had
granted habeas relief to a capital defendant raising a
similar vindictiveness claim. See id., at 411, n. 5 (citing
Adamson v. Ricketts, 865 F.2d 1011 (1988)). “While the
Ninth Circuit may have taken a different approach to this
question,” the Fifth Circuit maintained that it was bound
by its contrary precedent. 756 F.3d, at 411, n. 5.
Judge Dennis filed an opinion dissenting in relevant
part. He began by stressing that the court was “not called
upon to make a decision on the ultimate merits of Jordan’s
6 JORDAN v. FISHER
SOTOMAYOR, J., dissenting
prosecutorial vindictiveness claim.” Id., at 416 (opinion
concurring in part and dissenting in part). Judge Dennis
went on to explain why, as he saw it, Jordan had “shown
sufficient merit to the prosecutorial vindictiveness claim to
warrant his appeal being considered on the merits.” Id.,
at 422.
II
A
In contrast to an ordinary civil litigant, a state prisoner
who seeks a writ of habeas corpus in federal court holds no
automatic right to appeal from an adverse decision by a
district court. Under the Antiterrorism and Effective
Death Penalty Act of 1996, a would-be habeas appellant
must first obtain a COA. 28 U.S. C. §2253(c)(1).
The COA statute permits the issuance of a COA only
where a petitioner has made “a substantial showing of the
denial of a constitutional right.” §2253(c)(2). Our prece-
dents give form to this statutory command, explaining
that a petitioner must “sho[w] that reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner
or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’ ” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463
U.S. 880, 893, n. 4 (1983) (some internal quotation marks
omitted)). Satisfying that standard, this Court has stated,
“does not require a showing that the appeal will succeed.”
Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). Instead,
“[a] prisoner seeking a COA must prove something more
than the absence of frivolity or the existence of mere good
faith on his or her part.” Id., at 338 (internal quotation
marks omitted).
We have made equally clear that a COA determination
is a “threshold inquiry” that “does not require full consid-
eration of the factual or legal bases adduced in support of
Cite as: 576 U. S. ____ (2015) 7
SOTOMAYOR, J., dissenting
the claims.” Id., at 336. This insistence on limited review
is more than a formality: The statute mandates that,
absent a COA, “an appeal may not be taken to the court of
appeals.” §2253(c)(1). Thus, “until a COA has been issued
federal courts of appeals lack jurisdiction to rule on the
merits of appeals from habeas petitioners.” Id., at 336.
B
Although the Fifth Circuit accurately recited the stand-
ard for issuing a COA, its application of that standard in
this case contravened our precedents in two significant
respects.
To start, the Fifth Circuit was too demanding in as-
sessing whether reasonable jurists could debate the Dis-
trict Court’s denial of Jordan’s habeas petition. Two judges—
first Justice Banks, and later Judge Dennis—found
Jordan’s vindictiveness claim highly debatable. And the
en banc Ninth Circuit, presented with a similar claim in a
comparable procedural posture, had granted relief. Those
facts alone might be thought to indicate that reasonable
minds could differ—had differed—on the resolution of
Jordan’s claim. Cf. Rule 22.3 (CA3 2011) (“[I]f any judge
on the panel is of the opinion that the applicant has made
the showing required by 28 U.S. C. §2253, the certificate
will issue”); Jones v. Basinger, 635 F.3d 1030, 1040 (CA7
2011) (“When a state appellate court is divided on the
merits of the constitutional question, issuance of a certifi-
cate of appealability should ordinarily be routine”).
The Fifth Circuit nevertheless rejected Jordan’s vindic-
tiveness argument, finding the claim foreclosed by its
prior decision in Deloney, 713 F.2d 1080. As Judge Den-
nis’ dissent shows, however, Deloney (and the restrictive
gloss it placed on this Court’s Blackledge decision) is sus-
ceptible of more than one reasonable interpretation. The
defendant there entered into a plea agreement that re-
duced the charges against him. Later, the defendant not
8 JORDAN v. FISHER
SOTOMAYOR, J., dissenting
only backed out of his agreement with prosecutors, he
insisted on proceeding to trial, undermining the entire
purpose of the earlier plea-bargaining process. 713 F.2d,
at 1081. When that trial resulted in a conviction, the
defendant alleged that the prosecutor had no right to try
him on the original, pre-plea-bargain charges. Id., at
1085. Unsurprisingly, the Fifth Circuit disagreed; it held
that the defendant could not “bootstrap” his earlier efforts
to obtain a lesser sentence into a vindictiveness claim.
Ibid.
Jordan’s situation is materially different. No one dis-
putes that Jordan, like Deloney, attempted to alter the
terms of his plea agreement. But he did so only because
the Mississippi Supreme Court’s decision in Lanier ren-
dered invalid his life-without-parole sentence. In light of
Lanier, either Jordan or Owen should have asked to va-
cate Jordan’s invalid sentence; Jordan simply moved first.
Moreover, and again in contrast to the defendant in Delo-
ney, Jordan never attempted to deprive the State of the
benefit of its earlier bargain. Once Mississippi law
changed, Jordan was willing to return to the status quo
ante: He offered to accept the same sentence of life without
parole. It was Owen, the prosecutor, who demanded a
fourth trial. On these facts, it is far from certain that
Deloney precludes Jordan from asserting a claim of prose-
cutorial vindictiveness.
In any event, Jordan’s reading of the Fifth Circuit’s case
law need not be the best one to allow him to obtain further
review. “[M]eritorious appeals are a subset of those in
which a certificate should issue,” Thomas v. United States,
328 F.3d 305, 308 (CA7 2003), not the full universe of
such cases. “It is consistent with §2253 that a COA will
issue in some instances where there is no certainty of
ultimate relief.” Miller-El, 537 U.S., at 337. “Indeed, a
claim can be debatable even though every jurist of reason
might agree, after the COA has been granted and the case
Cite as: 576 U. S. ____ (2015) 9
SOTOMAYOR, J., dissenting
received full consideration, that the petitioner will not
prevail.” Id., at 338. The possibility that Jordan’s claim
may falter down the stretch should not necessarily bar it
from leaving the starting gate.
The Fifth Circuit’s second, and more fundamental,
mistake was failing to “limit its examination to a thresh-
old inquiry.” Id., at 327. “[A] COA ruling is not the occa-
sion for a ruling on the merit of [a] petitioner’s claim.” Id.,
at 331. It requires only “an overview of the claims in the
habeas petition and a general assessment of their merits.”
Id., at 336.
Here, the Fifth Circuit engaged in precisely the analysis
Miller-El and the COA statute forbid: conducting, across
more than five full pages of the Federal Reporter, a de-
tailed evaluation of the merits and then concluding that
because Jordan had “fail[ed] to prove” his constitutional
claim, 756 F.3d, at 407, a COA was not warranted. But
proving his claim was not Jordan’s burden. When a court
decides whether a COA should issue, “[t]he question is the
debatability of the underlying constitutional claim, not the
resolution of that debate.” Miller-El, 537 U.S., at 342.
Where, as here, “a court of appeals sidesteps this process
by first deciding the merits of an appeal, and then justify-
ing its denial of a COA based on its adjudication of the
actual merits, it is in essence deciding an appeal without
jurisdiction.” Id., at 336–337.2
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2 This is not the first time the Fifth Circuit has denied a COA after
engaging in an extensive review of the merits of a habeas petitioner’s
claims. See, e.g., Tabler v. Stephens, 588 Fed. Appx. 297 (2014); Reed v.
Stephens, 739 F.3d 753 (2014); Foster v. Quarterman, 466 F.3d 359
(2006); Ruiz v. Quarterman, 460 F.3d 638 (2006); Cardenas v. Dretke,
405 F.3d 244 (2005). Nor is it the first time the Fifth Circuit has
denied a COA over a dissenting opinion. See, e.g., Tabler, 588 Fed.
Appx. 297; Jackson v. Dretke, 450 F.3d 614 (2006). Although I do not
intend to imply that a COA was definitely warranted in each of these
cases, the pattern they and others like them form is troubling.
10 JORDAN v. FISHER
SOTOMAYOR, J., dissenting
* * *
The barrier the COA requirement erects is important,
but not insurmountable. In cases where a habeas peti-
tioner makes a threshold showing that his constitutional
rights were violated, a COA should issue. I believe Jordan
has plainly made that showing. For that reason, I would
grant Jordan’s petition and summarily reverse the Fifth
Circuit’s judgment. I respectfully dissent from the denial
of certiorari.