Early v. Kelley

          APPEAL FROM THE LEE COUNTY CIRCUIT COURT [NO. 39CV-17-134-2] HONORABLE RICHARD LEE PROCTOR, JUDGE.

          Reginald R. Early, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Rachel Kemp, Ass't Att'y Gen., for appellee.

          SHAWN A. WOMACK, ASSOCIATE JUSTICE.

         Reginald 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.

         Early 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 life sentence.

         Early 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.

         Finally, 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 merit.

         Affirmed.

          Special Justice Sam Terry joins.

          Hart, J., dissents.

          Wynne, J., not participating.

          Josephine Linker Hart, Justice, dissenting.

         The 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 ...