Whether a state court violates the Ex Post Facto Clause and Due Process Clause by applying procedural bars to preclude review of a capital defendant's substantive ex post facto challenge when the state court has contemporaneously held that all legislation is substantive law

No question identified. : To the Honorable Samuel Alito, Associate Justice of the Supreme Court of the United States and Circuit Justice for the Fifth Circuit: The State of Mississippi has scheduled the execution of Petitioner, Richard Gerald Jordan, for Wednesday, June 25, 2025, at 6:00 p.m. Jordan filed a Petition for Writ of Certiorari on June 20, 2025, challenging the Mississippi Supreme Court’s inconsistent application of Mississippi law to evade federal review of Jordan’s ew post facto claim and resulting violation of his due process rights. Jordan respectfully requests a stay of execution pending the Court’s disposition of this case. PROCEDURAL BACKGROUND Jordan was sentenced to death for a crime that occurred in January 1976, shortly after he returned home from Vietnam. The only constitutional penalty available for the crime at that time was imprisonment for life. Pet. 3. Accordingly, Jordan challenged his sentence arguing it violated the Ex Post Facto Clause in 1978. See Jordan v. State, 365 So. 2d 1198, 1204 (Miss. 1978). The Mississippi Supreme Court denied Jordan’s claim on the grounds that the change in state statute was “procedural” rather than “substantive.” Jd. (relying on Irving v. State, 361 So. 2d 1360 (Miss. 1978)). Mississippi has now radically departed from years of precedent and held that a// law enacted by the Legislature, including Mississippi’s Uniform Post-Conviction Collateral Relief Act, (“UPCCRA”) codified at Miss. Code Ann. §99-39-1, et seq., is substantive law. See Howell v. State, 358 So. 3d 613 (Miss. 2023); Ronk v. State, 391 So. 3d 785 (Miss. 2024). As a result, Jordan filed a successive motion for post-conviction relief in the Mississippi Supreme Court arguing that Howell and Ronk established that the reasoning the Mississippi Supreme Court originally used to deny Jordan’s ex post fact claim was faulty. In a two-page order, a divided Mississippi Supreme Court denied Jordan’s motion finding his ex post facto claim was “time-and successive writ barred” and “barred by res judicata.” En Banc Order, at 1, Jordan v. State, No. 2024-DR-01272-SCT (May 1, 2025.) On rehearing, Jordan argued that the Court erred in applying the intervening decision exception to Howell and Ronk, and that the statutory bars were unconstitutional as applied citing Hathorne v. State, 376 So. 3d 1209 (Miss. 2023). The Mississippi Supreme Court denied rehearing in a one sentence order. Petitioner timely filed for a writ of certiorari to this Court on June 20, 2025. The Mississippi Supreme Court has refused to apply the new classification that all law passed by the Legislature is substantive to Jordan’s renewed challenge to his sentence under the ex post facto clause. But if all law passed by the Mississippi legislature is indeed substantive, the Mississippi Supreme Court should not be able to avoid federal review by simply falling back on an application of statutory bars when it is inconvenient to grant relief. REASONS FOR GRANTING THE STAY Jordan respectfully asks this Court to stay his execution pending disposition of this case. Due to the timing of the state court’s ruling, and Jordan’s impending execution date, this Court would be unable to consider his petition in the normal course without the need for a stay. Further, a stay of execution is necessary to permit the Court to resolve the case after briefing and argument next Term. A stay may be granted in certiorari proceedings when there is “‘a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; there must be a significant possibility of reversal of the lower court’s decision; and there must be a likelihood that irreparable harm will result if the decision is not stayed.” Barefoot v. Estelle, 463 U.S. 880, 895 (1983)(internal citations and quotations omitted). Federal courts evaluating a request for a stay also consider the petitioner’s