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                SUPREME COURT OF ARKANSAS
                                      No.   CV-13-492

RAY HOBBS, DIRECTOR,                             Opinion Delivered   May 15, 2014
ARKANSAS DEPARTMENT OF
CORRECTION                                       APPEAL FROM THE LEE COUNTY
                   APPELLANT                     CIRCUIT COURT
                                                 [NO. 39CV-13-83]
V.
                                                 HONORABLE RICHARD L.
                                                 PROCTOR, JUDGE
ULONZO GORDON
                                 APPELLEE        REVERSED AND REMANDED.


                        KAREN R. BAKER, Associate Justice


       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 (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 Sept. 18, 1997) (unpublished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 (2012), and

asserting that his sentence to life imprisonment was illegal because he was a juvenile at the
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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. Gordon attached as an exhibit to his petition a certified copy of his birth certificate,

which reflected that his birth date was August 18, 1977.

       Gordon cites Miller as his basis for relief, wherein the United States Supreme Court

held that the mandatory life-without-the-possibility-of-parole sentence was unconstitutional

as to juveniles. In Miller, the Supreme Court held “that the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without possibility of parole for juvenile

offenders. . . . Although we do not foreclose a sentencer’s ability to make that judgment in

homicide cases, we require it to take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, ___

U.S. at ___, 132 S. Ct. at 2469 (internal quotations and citations omitted). In Jackson v.

Norris, 2013 Ark. 175, ___ S.W.3d ___, on remand to this court, we severed the language

of our capital-murder statute as it applies to juveniles to remove the mandatory sentencing

of life without parole, granted Jackson’s writ of habeas corpus, and remanded Jackson’s case

to the circuit court for resentencing to comply with Miller. Based on these cases, Gordon

asserts that his sentence was illegal on its face.

       In his petition, Gordon contended that at the time of the offense, January 28, 1995,

pursuant to Ark. Code Ann. § 5-4-601 (Repl. 2006), capital murder was punishable only by


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either life imprisonment or death.       Thus, Gordon asserted that his life sentence was

mandatorily imposed and in violation of Miller. Further, Gordon asserted that because Roper

v. Simmons, 543 U.S. 551 (2005), declared the death penalty an unconstitutional sentence for

juveniles convicted of any crime, the remaining sentence, life imprisonment without the

possibility of parole, was mandatorily imposed. Gordon further contended that based on

Roper, life without parole was the only sentence available for a juvenile convicted of capital

murder in Arkansas and was mandatorily imposed on him. Gordon asserted that the circuit

court should vacate his sentence as unconstitutional and remand it for resentencing pursuant

to Ark. Code Ann. § 16-112-117 (Repl. 2006).

       On July 29, 2013, appellant, Ray Hobbs, Director of the Arkansas Department of

Correction (hereinafter “the State”) responded to Gordon’s petition with a “Memorandum

in Opposition to the Petition.” Citing the habeas statutes, the State asserted that it was not

required to file a responsive pleading, “a return,” unless the circuit court first found that the

petition “show[s], by affidavit or other evidence, probable cause to believe [the petitioner] is

detained without lawful authority.” Although the State maintained that it was not required

to file a formal return until the formal probable-cause determination was made, the State

“offered this memorandum of authorities to assist the court in that determination.” The State

responded that Gordon’s petition should be denied for two reasons. First, because “Gordon’s

Miller claim is . . . that his sentence was imposed on him by an illegal procedure, . . . a

mandatory punishment scheme, his claim is not cognizable under the state habeas-corpus

statute.” Second, the State responded that even if Gordon’s claim was cognizable, he is still


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not entitled to relief because Miller did not apply retroactively.

        On August 7, 2013, the circuit court entered a letter opinion, which stated in pertinent

part:

        The Court has received a Petition for Writ of Habeas Corpus on behalf of Ulonzo
        Gordon. It appears that Miller v. Alabama, 132 S. Ct. 2455 (2012), is applicable.
        Accordingly; Whiteside v. State, 2013 Ark. 176, and Jackson v. Norris, 2013 Ark. 175,
        require this Court to grant the Petition of Ulonzo Gordon for habeas relief.

        On August 23, 2013, the circuit court granted Gordon’s petition and vacated and set

aside Gordon’s sentence. The order stated in pertinent part:

               The Court finds that the grant of the writ is compelled by the decision of the
        United States Supreme Court in Miller v. Alabama/ Jackson v. Hobbs, 132 S. Ct. 2455
        (2012), and of the Arkansas Supreme Court in Jackson v. Norris, 2013 Ark. 175.
        Petitioner Gordon’s sentence of life imprisonment without parole is hereby vacated
        and set aside.

               The writ having been granted, the Circuit Court of Crittenden County is
        hereby reinvested with jurisdiction to conduct resentencing proceedings. Accordingly,
        matters surrounding the issuance of summons and Respondent’s Motion to Quash are
        moot.

        On September 9, 2013, the State filed a motion for reconsideration, asserting that the

circuit court’s order was inconsistent with the procedure prescribed in the habeas corpus

statute. The State contended that the order was inconsistent because if the circuit court

believed that Gordon had demonstrated probable cause to believe that Gordon may be

unlawfully detained, the circuit court should “do no more than issue the writ requiring [the

State] to submit a return so that material facts can be ascertained as to the lawfulness . . . of

[Gordon’s] custody. In other words, granting the writ at this stage means only that [the State]

should file a return, and, if [the State] disputes the lawfulness of [Gordon’s] custody, the Court


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should conduct a hearing to ascertain material facts.” The circuit court did not rule on the

motion for reconsideration and it was deemed denied.

       The State now brings this appeal and presents three issues for review: (1) the circuit

court erred in granting Gordon’s habeas petition because the petition failed to demonstrate

probable cause to believe he is detained without lawful authority, as claims under Miller are

not cognizable under the habeas corpus statute; (2) the circuit court erred in granting

Gordon’s habeas petition because the petition failed to demonstrate probable cause to believe

he is detained without lawful authority, as Miller does not apply retroactively; and (3) the

circuit court’s writ was invalid pursuant to Ark. Code Ann. §§ 16-112-103 to -108.

       On review, we “will not reverse the trial court’s decision granting or denying

postconviction relief unless it is clearly erroneous. A finding is clearly erroneous when,

although there is evidence to support it, the appellate court after reviewing the entire evidence

is left with the definite and firm conviction that a mistake has been committed. Reynolds v.

State, 341 Ark. 387, 18 S.W.3d 331 (2000).” Flores v. State, 350 Ark. 198, 206, 85 S.W.3d

896, 901 (2002).

       For its first point on appeal, the State asserts that Gordon’s claim is not cognizable in

a habeas proceeding because Gordon’s sentencing argument is based on an illegal manner or

manner-of-imposition claim and not cognizable in habeas. Citing to Goins v. Norris, 2012

Ark. 192, the State contends that this court has made a distinction between the facial

invalidity of a judgment from a claim that a sentence was imposed in an illegal manner. The

State asserts that Gordon’s Miller claim is based on the manner in which the sentence was


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imposed, not an allegation that the sentence was illegal on its face; therefore, the claim is not

cognizable in habeas.

       Gordon responds that his claim is cognizable as his case is identical to Jackson and relief

is appropriate. Gordon further responds that there are no other remedies available to correct

his unconstitutional mandatory life sentence as error coram nobis and Rule 37 proceedings

are not available. Citing Ark. Code Ann. § 16-112-103, Gordon also contends that a

sentence that is illegal on its face may be evidenced by “affidavit or other evidence,” arguing

that a blind reliance on the face of the judgment would be an absurdity and that further

inquiry into the exact nature of the sentence is required.

       The State replied that habeas relief is a very narrow remedy and that Gordon’s claim

is simply not cognizable in habeas. The State further contends that Gordon’s claim would

expand the scope of remedies under current habeas law and would require the court to go to

the record to grant relief which is a “textbook example of a claim that is not cognizable under

the habeas-corpus statute.” Finally, the State replies that Gordon ignores the other forum

available to him for relief – federal habeas corpus relief.

       At issue is whether Gordon’s claim is cognizable in habeas corpus proceedings. We

turn to our habeas law to review the circumstances under which habeas relief is cognizable.

First, Ark. Code Ann. § 16-112-103 (Repl. 2006), provides in pertinent part:

       (a)(1) The writ of habeas corpus shall be granted . . . to any person who shall apply for
       the writ by petition showing, by affidavit or other evidence, probable cause to believe
       he or she is detained without lawful authority, is imprisoned when by law he or she
       is entitled to bail, or who has alleged actual innocence of the offense or offenses for
       which the person was convicted.


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       Our case law interpreting the habeas statutes provides: “[A] writ of habeas corpus is

proper when a judgment of conviction is invalid on its face or when a circuit court lacked

jurisdiction over the cause.” Davis v. Reed, 316 Ark. 575, 577, 873 S.W.2d 524, 525 (1994).

Unless a petitioner can show that the trial court lacked jurisdiction or that the commitment

was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue.

Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). The petitioner must plead either the

facial invalidity or the lack of jurisdiction and make a “showing, by affidavit or other

evidence, [of] probable cause to believe” he is illegally detained. Ark. Code Ann. § 16-112-

103. See Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 484 (1989); see also Mackey v. Lockhart,

307 Ark. 321, 819 S.W.2d 702 (1991).

       In Simpson v. Sheriff of Dallas County, 333 Ark. 277, 968 S.W.2d 614 (1998), we

explained:

                Chief Justice John Marshall once referred to the writ of habeas corpus as the
       “great writ,” Ex parte Bollman, 4 Cranch 75, 95, 2 L. Ed. 554 (1807), and the writ “has
       been for centuries esteemed the best and only sufficient defence of personal freedom.”
       Ex parte Yerger, 8 Wall. 85, 95, 19 L. Ed. 332 (1868). Justice George Rose Smith
       observed nearly fifty years ago that the “extraordinary remedy” of the writ of habeas
       corpus may “be invoked when no other effective means of relief is at hand.” Haller v.
       Ratcliffe, 215 Ark. 628, 629, 221 S.W.2d 886, 887 (1949).

Id. at 283–84, 968 S.W.2d at 617–18.

       In Jackson, supra, upon remand from the United States Supreme Court, we issued a writ

of habeas corpus to correct Jackson’s illegal sentence based on Miller. Subsequent to Jackson,

in Whiteside v. State, we addressed Whiteside’s Miller claim on direct review and dismissed the

State’s argument that Whiteside’s argument was not preserved for review and explained:


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                 We disagree that Whiteside failed to properly preserve this issue, as he argued,
        both at trial and in Whiteside I, that a life sentence without parole under the
        circumstances of his case was unusual, excessive, and in violation of his rights under
        the Eighth Amendment to the United States Constitution. However, regardless of
        whether Whiteside properly preserved his Miller claim, we agree with his assertion that
        the imposition of a void or illegal sentence is subject to challenge at any time. Thomas
        v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). Sentencing in Arkansas is entirely a
        matter of statute, and where the law does not authorize the particular sentence
        imposed by a trial court, the sentence is unauthorized and illegal. State v. Joslin, 364
        Ark. 545, 222 S.W.3d 168 (2006). According to the Supreme Court’s decision in
        Miller, the mandatory life-without-parole sentence that Whiteside received pursuant
        to Ark. Code Ann. § 5-10-101(c) is illegal under the Eighth Amendment to the
        United States Constitution. Thus, because the issue in this case involves a void or
        illegal sentence, it can be addressed for the first time on appeal. Thomas, supra.

2013 Ark. 176, at 2, ___ S.W.3d ___, ___.

        Finally, in Murry v. Hobbs, 2013 Ark. 64 (per curiam), Murry filed a petition for writ

of habeas corpus asserting that his sentence was illegal under Miller. We declined to issue a

writ of habeas corpus holding that “[b]ecause [Murry’s] life sentence was not mandatory, but

was instead chosen from a range of possible punishments, he cannot demonstrate that his

sentence is illegal under Miller.” Id. at 4. We did not hold that the petition for writ of habeas

corpus was not cognizable in habeas proceedings; rather, we dismissed the petition on the

merits. See also Smith v. State, 2014 Ark. 204 (citing Jackson and Murry in affirming the circuit

court’s denial of the merits of Smith’s petition for writ of habeas corpus seeking relief pursuant

to Miller).

        Here, Gordon asserts that based on Miller and because he was a juvenile when he was

sentenced, his sentence is illegal. Based on our discussion above, we hold that Gordon’s claim

is cognizable in habeas proceedings because we have previously held that such claims are

cognizable and are appropriate for the writ of habeas corpus. Therefore, we do not find merit

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in the State’s argument that Gordon’s claim is not cognizable in habeas.

       We turn next to the State’s assertion that the circuit court failed to issue the writ in

compliance with Ark. Code Ann. §§ 16-112-103 to -108 (Repl. 2006). Specifically, the State

contends that pursuant to Ark. Code Ann. § 16-112-101, the prescribed protocol in granting

a petition for writ of habeas corpus is mandatory, not discretionary, and must be followed.

The State further contends that the “writ is a mechanism by which a prisoner who has

demonstrated probable cause is brought before the court in order for the warden to justify the

challenged confinement.” Finally, the State asserts that instead of transferring Gordon’s case

for resentencing, the circuit court should have ordered the State to file a “return,” justify the

confinement, and address the issue of Gordon’s accurate age. In sum, the State asserts that the

circuit court bypassed the mandated procedures, failed to issue the writ to the State, and

erroneously granted relief from the underlying commitment.

       Gordon responds that there is no material fact in dispute and no need for the circuit

court to conduct a trial of the writ as to material facts. Gordon further responds that by filing

a response to Gordon’s petition, the State was undisputedly served with the summons and

petition, and received adequate notice. Thus, the service of the summons, the petition and

the response “fulfilled the purpose of the ‘return’ requirement in the habeas statute.” Gordon

also asserts that even if the statutes were not followed, the State has failed to demonstrate

undue hardship or injury. Finally, Gordon responds that the principles of judicial economy

and efficiency support his position.

       Arkansas Code sections 16-112-101 to -208 govern Gordon’s petition and provide the


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procedure for habeas corpus applications. Ark. Code Ann. § 16-112-101 provides that “the

writ of habeas corpus shall be issued, served, and tried in the manner prescribed in this

chapter, Title 16, Practice Procedure and Court.” (Emphasis added). Next, Ark. Code Ann.

§ 16-112-103(a)(1) provides that “[t]he writ of habeas corpus shall be granted . . . to any

person who shall apply for the writ by petition showing, by affidavit or other evidence,

probable cause to believe he or she is detained without lawful authority.” In interpreting a

statute, we construe a statute just as it reads, giving the words their ordinary and usually

accepted meaning in common language. Walden v. State, 2014 Ark. 193, at 4, ___ S.W.3d

___, ___. The word “shall” has been consistently construed by this court to mean mandatory

compliance. Aikens v. State, 368 Ark. 641, 249 S.W.3d 788 (2007) (citing Ray & Sons

Masonry Contractors, Inc. v. U.S. Fid. & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003)).

       We have interpreted these statutes and explained that,

              [t]he great object of the writ is the liberation of those who may be imprisoned
       without sufficient cause, and to deliver from unlawful custody. . . .[I]ts object is to
       require the person who answers it to show upon what authority he detains the
       prisoner.

State ex rel. Ark. Indus. Co. v. Neel, 48 Ark. 283, 289, 3 S.W. 631, 633 (1887).

       Here, the record demonstrates that the circuit court issued the writ; however, the

circuit court did not make a finding of probable cause to issue the writ as prescribed in Ark.

Code Ann. § 16-112-103(a)(1). Although the circuit court may have implicitly found that

Gordon’s petition evidenced probable cause to issue the writ, the record demonstrates that a

probable cause finding was not made. The habeas procedures make clear that the circuit court

must first make this probable-cause finding prior to moving forward with the remaining

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habeas procedures.

       Accordingly, pursuant to our discussion above, a determination of whether probable

cause is shown must be made for the circuit court to issue the writ. Therefore, we remand

the matter to the circuit court for such finding and any further proceedings required by our

habeas statutes. Because we have reversed and remanded on this point, we do not reach the

remaining point on appeal.

       Reversed and remanded for proceedings consistent with this opinion.

       Dustin McDaniel, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellant.

       D’Lorah L. Hughes; and Jeff Rosenzweig, for appellee.




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