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                 SUPREME COURT OF ARKANSAS
                                         No.   CV-14-468

RAY HOBBS, DIRECTOR,                                Opinion Delivered May 14, 2015
ARKANSAS DEPARTMENT OF
CORRECTION                                          APPEAL FROM THE LEE COUNTY
                   APPELLANT                        CIRCUIT COURT
                                                    [NO. 39-CV-13-81]
V.
                                                    HONORABLE L.T. SIMES, JUDGE

JAMES GRUBBS                                        REVERSED AND REMANDED.
                                   APPELLEE


                    COURTNEY HUDSON GOODSON, Associate Justice


       Appellant Ray Hobbs, Director of the Arkansas Department of Correction (hereinafter

“State”), appeals an order entered by the Lee County Circuit Court granting habeas-corpus

relief to appellee James Grubbs. For reversal, the State contends that the circuit court erred

(1) in ruling that the United States Supreme Court’s decision in Miller v. Alabama, ___ U.S.

___, 132 S. Ct. 2455 (2012), applies retroactively to invalidate Grubbs’s sentence of life

without parole imposed upon his conviction for capital murder, and (2) by not adhering to the

statutory procedure governing the resolution of habeas-corpus petitions. We reverse and

remand on the second point.

       The record reflects that on September 26, 1995, Grubbs entered in the White County

Circuit Court a negotiated plea of guilty to the offense of capital murder. As a result of the plea,

he received a sentence of life without the possibility of parole. On June 24, 2013, Grubbs filed

a petition for writ of habeas corpus in the Lee County Circuit Court, the court in the county
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where he is incarcerated. In the petition, Grubbs alleged that he was being detained without

lawful authority because he was a juvenile at the time of the offense and received a mandatory

sentence of life without parole contrary to the opinion in Miller, supra, where the Court held

that the imposition of a mandatory sentence of life without the possibility of parole for juvenile

homicide offenders violates the Eighth Amendment’s prohibition against cruel and unusual

punishment. He also asserted that the decision in Miller applies retroactively to cases, like his

own, on collateral review. In compliance with Arkansas Code Annotated section 16-112-

103(d) (Repl. 2006), Grubbs attached a certified copy of the 1995 judgment and commitment

order. The judgment contains a notation that Grubbs’s date of birth is May 4, 1977, and states

that Grubbs committed the offense on March 8, 1995.

       In reply, the State submitted a response and memorandum of authorities in opposition

to the petition. In this response, the State made clear that, procedurally, it was not required to

file a response or formal “return” unless the circuit court first determined that there was

probable cause for issuing the writ, and the State maintained that it was offering the response

and memoranda of authorities solely for the purpose of assisting the court in making a probable-

cause determination. Further, the State asserted that Grubbs could not benefit from the decision

in Miller because its holding was not retroactive in application. For this assertion, the State

principally relied on the Supreme Court’s decision in Teague v. Lane, 489 U.S. 288 (1989)

(plurality opinion).

       On September 23, 2013, the circuit court held a hearing on the petition.1 The court


       1
        The circuit court conducted a joint hearing, combining a consideration of Grubbs’s
petition with that of Aaron Hodge, who was represented by the same attorneys and who

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took no evidence but heard argument of counsel regarding the retroactive application of the

holding in Miller. During the course of the hearing, the circuit court asked whether there was

any dispute that Grubbs was under the age of eighteen when the offense was committed.

Grubbs’ counsel replied that there was no dispute, but counsel for the State maintained that,

while it believed that Grubbs was underage, it considered it necessary to verify Grubbs’s age

with a certified vital record. The circuit court acknowledged the State’s position that is was

necessary to “verify this age thing, certainly.” At the conclusion of the hearing, the circuit court

asked the parties to submit briefs along with proposed orders reflecting their respective positions

on the retroactivity of Miller.

       In its brief, the State “emphasized that the only question presently before the Court is

whether petitioners’ applications for the writ sufficiently demonstrate probable cause to believe

they are confined in the penitentiary without lawful authority.” The State supplemented this

statement with the following footnote:

       Although petitioners’ counsel argued at the hearing that there is no dispute that
       petitioners were minors when they committed their brutal homicides, he is
       mistaken. Because petitioners’ counsel has, in at least two other cases involving
       Miller issues, alleged discrepancies between other petitioners’ true ages and their
       ages as reflected in the penitentiary records, see Gordon v. Hobbs, No. 39CV-
       13-84 (Lee County Circuit Court), and Brown v. Hobbs, No. LCV 2013-75-2
       (Lincoln County Circuit Court), it cannot be assumed simply from the
       allegations and records before the Court that petitioners Grubbs and Hodge were,
       as a matter of fact, under age eighteen at the time of their crimes. As respondent
       argued at the hearing, it seems at a minimum that a vital record would be
       necessary to establish that fact, but only if the Court first concludes that probable
       cause has been established so as to warrant a determination of that fact.



presented an identical habeas claim in his petition. Today, we also address the appeal of
Hobbs v. Hodge, 2015 Ark. 207.

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         On November 6, 2013, the circuit court entered its order granting habeas-corpus relief.

The court found that Grubbs was serving a mandatory sentence of life imprisonment without

parole for capital murder and that his conviction involved a homicide committed before he had

attained the age of eighteen. Further, the circuit court ruled that the only available sentence to

Grubbs for capital murder was life in prison without parole and that the sentence violated the

Eighth Amendment as announced in Miller. The circuit court also accepted Grubbs’s argument

that Miller applies retroactively to cases on collateral review. Alternatively, and noting that state

courts are free to afford Supreme Court decisions greater retroactivity than federal courts, the

circuit court was persuaded by the fact that this court had granted habeas-corpus relief on

collateral review in Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906, the Arkansas case also

considered by the Court in Miller. Thus, the court concluded that to deny Grubbs relief would

violate both federal and state guarantees of equal protection. Based on these findings and

conclusions of law, the circuit court vacated Grubbs’s sentence and remanded to the White

County Circuit Court for resentencing. The State brings this appeal from the circuit court’s

order.

         As its second point on appeal, the State raises the preliminary issue that the circuit court

failed to follow the mandatory statutory procedures for granting habeas-corpus relief. It

contends that the circuit court prematurely granted the writ and afforded habeas-corpus relief

before making a determination of probable cause and without requiring it to file a return to

justify the confinement and to enable the court to determine the material facts. This precise

issue was raised in the companion case of Hobbs v. Hodge, 2015 Ark. 207, where this court found

merit in the State’s argument and reversed and remanded for further proceedings. Our decision

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in Hodge is controlling of the issue in this case. Therefore, we consider it unnecessary to

reiterate here what we have said in the companion case, and we adopt and incorporate herein

by reference the reasoning set forth in Hodge. Accordingly, we reverse and remand for further

proceedings.

       Reversed and remanded.

       WOOD and WYNNE, JJ., dissent.

       RHONDA K. WOOD, Justice, dissenting. I dissent for the same reasons explained

in my dissenting opinion to the companion case of Hobbs v. Hodge, 2015 Ark. 207.


       WYNNE, J., joins.

       Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, for appellant.

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




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