     Case: 14-60594      Document: 00513555257         Page: 1    Date Filed: 06/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals

                                    No. 14-60594
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                         June 20, 2016
                                                                          Lyle W. Cayce
TIMOTHY W. JORDAN,                                                             Clerk


                                                 Petitioner-Appellant

v.

STATE OF MISSISSIPPI,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:12-CV-105


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Timothy W. Jordan, Mississippi state prisoner # 143269, appeals from
the district court’s dismissal of a claim raised in his 28 U.S.C. § 2254 petition.
Specifically, Jordan argued in the petition that the state trial court erred in
permitting the prosecution to repeatedly rehabilitate and alter the testimony
of Krystal Jordan through the testimony of her lawyer, Carnelia Fondren.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-60594

      The district court rejected this claim as procedurally barred, finding that
the last state court to consider the claim had rejected it pursuant to an
independent state procedural rule, namely Mississippi Code Annotated § 99-
39-21(1), because the claim could have been but was not raised on direct
appeal. We granted a certificate of appealability to consider on appeal whether
the district court erred in dismissing the claim as procedurally barred. In
considering this issue, our review is de novo. See Stokes v. Anderson, 123 F.3d
858, 859 (5th Cir. 1997).
      Jordan first raised his claim concerning Fondren’s testimony during his
direct criminal appeal. Specifically, on direct appeal, the state appellate court
observed that “Tim,” the petitioner herein, as well as two of his co-defendants
had argued, inter alia, that “Fondren improperly bolstered Krystal’s credibility
and gave improper opinion testimony.” Jordan v. State, 80 So. 3d 817, 829
(Miss. Ct. App. 2010). Jordan’s appellate brief on direct appeal supports the
state court’s statement. In a section titled “Whether the trial court allowed
improper legal opinions which were comments on evidence and witness
veracity,” Jordan argued that the state court erred in permitting Fondren to
comment and give opinion testimony regarding the evidence against all of the
defendants and the veracity of the witnesses and to basically tell the jury that
Krystal was telling the truth.
      In this court, the State fails to explain how this claim is different from
the claim that Jordan raised in Issue Four of his pro se state habeas
application, wherein Jordan argued that the state trial court erred by
permitting the State to repeatedly rehabilitate Krystal’s testimony through the
testimony of her lawyer, Fondren.      Rather, the State simply asserts in a
conclusory fashion that the issue Jordan raised in his state habeas application
was not raised on direct appeal. The State’s argument is unavailing in light of



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                                 No. 14-60594

the appellate court’s opinion on direct appeal, Jordan’s counseled appellate
brief on direct appeal, and the liberal construction afforded to Jordan’s pro se
habeas filings. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Hall
v. State, 800 So. 2d 1202, 1206 (Miss. Ct. App. 2001).
      Because the Fondren claim was one of the claims that Jordan raised on
direct appeal, the Mississippi Supreme Court dismissed it during the state
habeas proceeding as barred by the doctrine of res judicata under § 99-39-21(3).
Res judicata does not prevent federal review of a habeas claim. Cone v. Bell,
556 U.S. 449, 466 (2009). Accordingly, the district court erred in concluding
that this claim was procedurally barred from federal habeas review.
      For the foregoing reasons, we VACATE the district court’s judgment as
to this claim, and we REMAND for further proceedings consistent with this
opinion.




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