RICO BENTON v. WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

Cite as 2020 Ark. 237
SUPREME COURT OF ARKANSAS
No. CV-19-667
Opinion Delivered June 11, 2020
RICO BENTON
APPELLANT
PRO SE APPEAL FROM THE LINCOLN
V. COUNTY CIRCUIT COURT
[NO. 40CV-19-59]
WENDY KELLEY, DIRECTOR,
ARKANSAS DEPARTMENT OF HONORABLE JODI RAINES DENNIS,
CORRECTION JUDGE
APPELLEE
AFFIRMED.
KAREN R. BAKER, Associate Justice
In 1995, appellant Rico Benton entered a plea of guilty to capital murder and was
sentenced to life imprisonment without parole. Benton now appeals the denial and
dismissal of his pro se petition for writ of habeas corpus. Benton argues on appeal, as he
did in his petition below, that his sentence of life imprisonment without parole is
unconstitutional and should be set aside pursuant to the United States Supreme Court’s
holdings in Miller v. Alabama, 567 U.S. 460 (2012), and its progeny. Specifically, Benton
contends that although he was twenty-one years old when he committed the offense of
capital murder, the general principle in Miller that mandatory life-without-parole sentences
should not apply to juveniles under the age eighteen because it violates the Eighth
Amendment should apply to him because he was still young and immature. The circuit
court denied relief and dismissed the habeas petition, finding that Miller has not been
applied to extend relief to offenders over the age of eighteen. We find no error and affirm.
I. Grounds for Issuance of the Writ
A writ of habeas corpus is proper when a judgment of conviction is invalid on its
face or when a trial court lacks jurisdiction over the cause. Philyaw v. Kelley, 2015 Ark. 465,
477 S.W.3d 503. Jurisdiction is the power of the court to hear and determine the subject
matter in controversy. Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). Under our
statute, a petitioner for the writ who does not allege his or her actual innocence and
proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or
the lack of jurisdiction by the trial court and make a showing, by affidavit or other
evidence, of probable cause to believe that he or she is being illegally detained. Id.; Ark.
Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the 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. Clay v. Kelley, 2017 Ark. 294, 528
S.W.3d 836.
II. Standard of Review
A circuit court’s decision on a petition for writ of habeas corpus will be upheld
unless it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A decision
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 made. Ratliff v. Kelley, 2018 Ark. 105, 541 S.W.3d 408.
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III. Application of Miller to Offenders Over Eighteen Years Old
Benton contends that although he was not a juvenile at the time of the offense, the
mandatory sentence of life imprisonment without parole violates the Eighth Amendment.
Citing cases such as Miller and Graham v. Florida, 560 U.S. 48 (2010), Benton contends that
states have enacted statutes providing greater protections for offenders between eighteen
and twenty-one years of age, even though they are not juveniles under the law. Benton fails
to establish that the writ should issue, and the circuit court did not clearly err by denying
his request for relief.
The United States Supreme Court has not extended its holdings to offenders that
were eighteen or older when the crime was committed, and federal courts that have
addressed this issue have rejected the application of the reasoning in Miller and Graham to
claims raised by petitioners who were eighteen or older when their crimes were
committed.1 Burgie v. State, 2019 Ark. 185, 575 S.W.3d 127. “In general, society has drawn
a line between a juvenile and an adult at the age of eighteen, which the United States
Supreme Court has relied on for sentencing purposes.” Id. at 3, 575 S.W.3d at 128.
Capital murder carries with it the possibility of two sentences—death or life without
parole. Ark. Code Ann. § 5-10-101(c) (Repl. 1993). Because Benton was an adult when he
committed the capital murder, the sentence of life imprisonment without parole is not a
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Although Benton cites Graham in support of his claim, Graham is inapplicable—not
only because Benton is not a juvenile but also because Benton committed a homicide
offense. In Graham, the Court concluded that a life sentence for a juvenile under the age
of eighteen who commits a nonhomicide offense violates the Eighth Amendment.
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violation of the Eighth Amendment, nor is it illegal, much less illegal on its face. When
the petitioner does not show that the judgment of conviction is invalid on its face, the
claim does not implicate the jurisdiction of the court to hear the case and is therefore not
cognizable in a habeas proceeding. McArthur v. State, 2019 Ark. 220, 577 S.W.3d 385.
The circuit court did not clearly err when it determined that Benton had failed to state
grounds demonstrating probable cause that he is being illegally detained.
IV. Evidentiary Hearing
Benton also contends that the circuit court should have held a hearing on his
habeas petition. Our statutory scheme does not mandate a hearing on a petition for writ
of habeas corpus regardless of the allegations contained in it. Noble v. State, 2019 Ark. 284,
585 S.W.3d 671. A hearing is not required on a habeas petition when probable cause for
issuance of the writ is not shown by affidavit or other evidence. Id. Because Benton failed
to establish probable cause for issuance of the writ, he did not establish he was entitled to a
hearing. Id.
Affirmed.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. In accordance with the Supreme
Court of the United States’ decision in Jackson v. Arkansas, 567 U.S. 460, a companion case
to Miller v. Alabama, Mr. Benton is entitled to have an evidentiary hearing in which he
could develop his case for extending Miller v. Alabama, 567 U.S. 460 (2012), and its
progeny. In Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d 103, this court affirmed the
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dismissal of Jackson’s habeas petition for the exact reasons cited by the majority in the case
before us––habeas corpus lies only when the commitment order is invalid on its face or
where the court authorizing the commitment lacked jurisdiction. After granting certiorari,
the Supreme Court of the United States rejected the Arkansas formulation regarding the
writ of habeas corpus and granted Jackson relief. However, despite the Supreme Court’s
unequivocal rejection of this court’s attempt to pare the writ of habeas corpus, this court
inexplicably continues to cite the thoroughly discredited assertion that the writ of habeas
corpus lies only when the commitment order is invalid on its face or where the court
authorizing the commitment lacked jurisdiction. This is wrong for many reasons.
First, the Arkansas Supreme Court is bound to follow the precedent of the Supreme
Court of the United States. See, e.g., State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215; State v.
Brown, 356 Ark. 460, 156 S.W.3d 722 (2004). While an inclination by this court to not
follow Supreme Court precedent is not unknown, see, e.g., Briggs v. State, 236 Ark. 596, 367
S.W.2d 750 (1963), it is ultimately self-defeating. Briggs was vacated by the Supreme Court
in Hamm v. City of Rock Hill, 379 U.S. 306 (1964).
Second, the majority is apparently blithely unaware that the writ of habeas corpus is
guaranteed by the federal and state constitutions. Article 1, section 9, clause 2 of the
United States Constitution provides that “[t]he privilege of the writ of habeas corpus shall
not be suspended, unless when in cases of rebellion or invasion the public safety may
require it.” Similarly, article 2, section 11 of the Arkansas Constitution provides that “[t]he
privilege of the writ of habeas corpus shall not be suspended; except by the General
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Assembly, in case of rebellion, insurrection or invasion, when the public safety may require
it.” Obviously, the majority’s decision is not driven by rebellion, invasion, or insurrection.
This court is also obviously not the General Assembly. Accordingly, the denial of the full
privilege of the writ of habeas corpus in this instance is unconstitutional.
Third, I am mindful that in Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997),
this court defended its limitation on the writ of habeas corpus despite express language in
the enabling legislation, Arkansas Code Annotated sections 16-112-101 et seq. The Sawyer
court, when confronted with a petitioner’s argument that the “facial invalidity or lack of
jurisdiction” rule did not comport with our habeas statute’s plain language, stated:
We have held that a habeas corpus petitioner is being held without lawful authority
when the commitment order is invalid on its face or the circuit court lacked jurisdiction.
The legislature is presumed to be familiar with this court's interpretation of its statutes, and
if it disagrees with those interpretations, it can amend the statutes. Without such
amendments, however, this court's interpretation of the statute remains the law.
Sawyer, 327 Ark. at 424, 938 S.W.2d at 845 (internal citations omitted). However, the
Sawyer court’s rationale for declining to follow the plain language of Arkansas Code
Annotated section 16-112-103(a) is not an interpretation of the statute rather, it is
wholesale legislation from the bench in flagrant violation of the separation of powers.
Regarding the merits of Mr. Benton’s petition, I cannot ignore that denying him a
hearing has hampered the full development of this case. However, in my view, it is
reminiscent of Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d 103, in that this court failed to
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recognize and apply the Supreme Court’s guidance embodied in Roper v. Simmons, 543 U.S.
551 (2005), and Graham v. Florida, 560 U.S. 48 (2010). The consequence, as noted
previously, was that Jackson became a companion case to the Supreme Court’s decision in
Miller, 567 U.S. 460.
In Roper, supra, the case in which the death penalty for juvenile offenders was
declared unconstitutional, the Supreme Court outlined the methodology for analyzing
issues related to the Eighth Amendment.
The prohibition against “cruel and unusual punishments,” like other expansive language in
the Constitution, must be interpreted according to its text, by considering history,
tradition, and precedent, and with due regard for its purpose and function in the
constitutional design. To implement this frame work we have established the propriety and
affirmed the necessity of referring to “the evolving standards of decency that mark the
progress of a maturing society” to determine which punishments are so disproportionate as
to be cruel and unusual.
543 U.S. at 560–61 (quoting Trop v. Dulles, 356 U.S. 86, 100–01 (1958)). The Roper Court
based its decision to proscribe the death penalty for juvenile offenders on three general
differences between juveniles and adults which demonstrate “that juvenile offenders
cannot with reliability be classified among the worst offenders.” 543 U.S. at 569. These
differences are (1) that lack of maturity and an underdeveloped sense of responsibility are
found in youth more often than in adults; (2) that juveniles are more vulnerable or
susceptible to negative influences and outside pressures, including peer pressure; and (3)
that the character of a juvenile is not as well formed as that of an adult. 543 U.S. at 569–
70. I am mindful that Graham and Miller drew a line for the heightened scrutiny of the
maturity level for youthful offenders at eighteen. However, the level of maturity in an
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individual does not necessarily correlate directly with his or her chronological age. I would
reverse the circuit court’s dismissal of Mr. Benton’s habeas petition and remand for
development of his case in an evidentiary hearing.
I dissent.
Rico Benton, pro se appellant.
Leslie Rutledge, Att’y Gen., by: David L. Eanes Jr., Ass’t Att’y Gen., for appellee.
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