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Kelley v. Gordon

Supreme Court of Arkansas

June 18, 2015

WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, APPELLANT
v.
ULONZO GORDON, APPELLEE

Petition for certiorari filed at, 12/07/2015

APPEAL FROM THE LEE COUNTY CIRCUIT COURT. NO. 39CV-13-83. HONORABLE RICHARD L. PROCTOR, JUDGE.

Jeff Rosenzweig, for appellant.

Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

OPINION

ROBIN F. WYNNE, Associate Justice.

This is an appeal from the Lee County Circuit Court's order granting appellee Ulonzo Gordon relief in his habeas-corpus proceeding upon finding that the holding of Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which prohibited mandatory sentences of life without the possibility of parole for juvenile offenders, applies retroactively. On appeal, Wendy Kelley, Director, Arkansas

Page 843

Department of Correction (the State), argues that the circuit court erred by ruling that Miller applies retroactively and that the circuit court's equal-protection/due-process ruling was erroneous. We affirm.

This is the second time this habeas appeal has been before us. Previously, this court reversed for failure to follow the procedures mandated by our habeas-corpus statutes, beginning with making a finding of probable cause to issue the writ, and remanded the case to the circuit court. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. As set out in that opinion,

On June 16, 1995, a Crittenden County jury convicted appellee, Ulonzo Gordon, of capital murder and sentenced him to mandatory life without the possibility of parole. We affirmed his conviction, as well as the sentences and convictions of his two codefendants in Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996), overruled on other grounds by MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). Gordon subsequently filed a Rule 37 petition seeking postconviction relief which the circuit court denied. We affirmed the circuit court in Gordon v. State, No. CR-96-878, 1997 WL 583031 (Ark. Sept. 18, 1997) (unpublished opinion).
On June 24, 2013, Gordon filed a petition for writ of habeas corpus pursuant to Ark. Code Ann. § 16-112-118(b)(1)(A)--(B) (Repl. 2006), alleging that he was being held without lawful authority pursuant to Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and asserting that his sentence to life imprisonment was illegal because he was a juvenile at the time of the offense. Gordon further asserted that the Crittenden County Circuit Clerk entered the wrong birth date on his judgment and commitment order having stated that his birthday was August 18, 1976. However, Gordon claimed that his birthday was August 18, 1977, which would make Gordon seventeen years old and a juvenile at the time of the offense.

Id. at 1-2, 434 S.W.3d at 365-66. On August 23, 2013, without holding a hearing, the circuit court granted Gordon's petition, vacated and set aside Gordon's sentence, and reinvested the Crittenden County Circuit Court with jurisdiction to conduct resentencing proceedings. Id. The State appealed, and we held that while Gordon's claim was cognizable in habeas-corpus proceedings, the circuit court had not followed the procedures mandated by our habeas-corpus statutes and, as noted above, reversed and remanded. See id.

On remand, the circuit court entered an order finding probable cause to believe that Gordon was being held without lawful authority within the meaning of Arkansas Code Annotated sections 16-112-101 et seq. and issued the writ. The Director of the Arkansas Department of Correction filed a return, stating that Gordon was in his custody based upon Gordon's conviction for capital murder in Crittenden County Circuit Court Criminal Case No. 95-149. Pursuant to Arkansas Code Annotated sections 16-112-108(c)(2) & -109(a), the director attached copies of the judgment and commitment order and Gordon's institutional file. The judgment and commitment order reflects that the date the murder was committed was January 28, 1995, and that Gordon's date of birth is August 18, 1976.

At the hearing before the circuit court, at which Gordon was present, the parties presented evidence on the issue of Gordon's true date of birth. As the circuit court's finding that Gordon was born on August 18, 1977--not 1976, as reflected on the judgment and commitment order--is not ...


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