REGINALD R. EARLY APPELLANT
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE
FROM THE LEE COUNTY CIRCUIT COURT [NO. 39CV-17-134-2]
HONORABLE RICHARD LEE PROCTOR, JUDGE.
Reginald R. Early, pro se appellant.
Rutledge, Att'y Gen., by: Rachel Kemp, Ass't
Att'y Gen., for appellee.
A. WOMACK, ASSOCIATE JUSTICE.
Early was convicted of first-degree murder and aggravated
robbery for his role in the 1988 killing of Myrtle Holmes. He
received a sentence of life imprisonment for each conviction.
Early was a minor at the time of the crime. We affirmed
Early's convictions on direct appeal. Brown v.
State, 315 Ark. 466, 869 S.W.2d 9 (1994). The present
appeal stems from Early's petition for a writ of habeas
corpus filed in the Lee County Circuit Court. Early made two
arguments in this petition below: (1) that the United States
Supreme Court's opinion in Graham v. Florida,
560 U.S. 48 (2010), rendered his life sentence for the
nonhomicide offense of aggravated robbery unconstitutional
because he was a minor at the time of the offense; and (2)
that the Court's decisions in Miller v. Alabama,
567 U.S. 460 (2012), and Montgomery v. Louisiana,
136 S.Ct. 718 (2016), forbids the sentence he received even
for his homicide offense. The circuit court denied his
petition. We affirm.
has abandoned his second, Miller-based argument on
appeal, and it is, in any case, without merit. As the circuit
court correctly ruled, Miller acts to limit
sentences of life without parole for juvenile homicide
offenders only when the imposition of those sentences was
mandatory. See Miller, 567 U.S. at 465. The
sentencing regime for first-degree murder at the time of
Early's conviction did not mandate a life sentence,
instead allowing for a term of ten to forty years or for a
does maintain his first argument on appeal. It is not,
however, any more availing. Simply put, Graham has
no application to Early's case. Though Early did receive
a life sentence for a nonhomicide offense as a juvenile,
Early's presentation of Graham skips the
critical detail that the opinion applies only to
"juvenile offender[s] who did not commit
homicide." Graham, 560 U.S. at 74
(emphasis added). As the Court explained, "[j]uvenile
offenders who committed both homicide and nonhomicide crimes
present a different situation for a sentencing judge than
juvenile offenders who committed no homicide."
Id. at 63. As it is uncontested that Early committed
a homicide offense along with his nonhomicide offense,
Graham is simply inapplicable.
Early argues-by his own concession for the first time on
appeal-that his sentences for first-degree murder and
aggravated robbery are invalid because aggravated robbery was
a lesser-included offense of first-degree murder. As
Early's reliance for this argument on Brewer v.
State, 277 Ark. 40, 639 S.W.2d 54 (1982), makes clear,
Early's claim is premised on an alleged double-jeopardy
violation. This court has already addressed an identical
argument from Early in one of his previous habeas petitions.
See Early v. Norris, CV-08-465, 2008 WL 2310967
(Ark. June 5, 2008) (unpublished per curiam). Citing
Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989),
we held that Early's claim of a double jeopardy violation
as presented does not "raise a question of jurisdiction
for purposes of habeas corpus relief." Early,
2008 WL 2310967, at *2. That holding remains unchanged;
therefore this final argument of Early's also lacks
Special Justice Sam Terry joins.
J., not participating.
Josephine Linker Hart, Justice, dissenting.
majority misunderstands the holding in Graham v.
Florida, 560 U.S. 48 (2010). In Miller v.
Alabama, 567 U.S. 460 (2012), the Supreme Court stated
the holding in a simple and straightforward way: "the
[Eighth] Amendment also prohibits a sentence of life without
the possibility of parole for a child who committed a
nonhomicide offense." 567 U.S. at 470. The
Miller court further referred to the holding in
Graham as a ...