Kelley v. Hobbs
Filing
17
ORDER scheduling an Evidentiary Hearing for 6/23/2014 at 9:30 a.m. before U. S. Magistrate Judge J. Thomas Ray, Richard Sheppard Arnold Courthouse, 500 West Capitol, Courtroom #1C, in Little Rock, Arkansas. Counsel should be prepared to address the issues outlined in this Order. Signed by Magistrate Judge J. Thomas Ray on 06/05/2014. (kcs)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JOE LOUIS KELLEY
ADC #084474
V.
PETITIONER
NO. 5:13CV00161 JLH/JTR
RAY HOBBS, Director
Arkansas Department of Correction
RESPONDENT
ORDER
On May 29, 2013, Petitioner, Joe Louis Kelley (“Kelley”), initiated this § 2254
habeas action. In his Petition (Doc. #2), he asserts that, on January 19, 2005, he began
serving an eight-year federal sentence for being a “felon in possession of
ammunition.” According to Kelley, during his eight years in the Bureau of Prisons
(“BOP”), he completed and fully discharged: (1) a concurrent five-year sentence for
committing a terroristic act imposed on September 24, 2004 in Pulaski County Fourth
Division Circuit Court;1 and (2) a concurrent five-year sentence for forgery imposed
1
Kelley’s eight-year federal sentence was imposed on January 19, 2005, almost
four months after the imposition of his five-year terroristic act sentence.
On March 1, 2012, the Arkansas Supreme Court ruled in Kelley’s favor on a
Petition for Declaratory Judgment and Writ of Mandamus challenging the validity of the
trial court’s September 24, 2004 Judgment and Commitment Order, which specified that
his terroristic act sentence ran consecutive to his not yet imposed federal sentence. See
Kelley v. Norris, 2012 Ark. 86. The Court ruled that both of Kelley’s state sentences ran
concurrently with each other and concurrently with the eight-year federal sentence
imposed on January 19, 2005.
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on February 10, 2005 in Pulaski County Second Division Circuit Court.
Thus, Kelley asserts that, after he completed serving his federal sentence, on
July 12, 2012, the BOP should have released him to the free world. Instead, it released
him to the custody of the Arkansas Department of Correction (“ADC”) to complete
serving the time he allegedly still owed on his terroristic act sentence. According to
Kelley, his confinement in the ADC, on and after July 12, 2012, is a violation of his
constitutional rights and requires this Court to grant a writ of habeas corpus.
In his Response to the Petition, Respondent does not address the merits of
Kelley’s argument that the ADC has improperly failed to credit his time in the BOP
against his concurrent state sentences. Instead, Respondent argues that the Court is
barred from reaching and deciding the merits of that issue based on the statute of
limitations, procedural default, and lack of subject matter jurisdiction. (Doc. #7, at 610.)
It appears indisputable that Kelley served and completed his federal sentence
first and never served a single day in the ADC prior to July 12, 2012. In Kelley v.
Norris, 2012 Ark. 86, the Arkansas Supreme Court held that both of Kelley’s fiveyear state court sentences ran concurrently with each other and with his eight-year
federal sentence, beginning on February 10, 2005. Thus, if the facts surrounding the
imposition and service of Kelley’s state and federal sentence are as the Court believes
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them to be, there appears to be a strong legal basis for his claim that he fully
discharged both of his concurrent state sentences during his eight years of
incarceration in the BOP.2
Before the Court can decide the merits of Kelley’s claims and Respondent’s
defenses, it must know the facts concerning when, where and how Kelley served his
sentences. While all of those facts appear to be indisputable, during the protracted
mandamus proceedings before the Arkansas Supreme Court, counsel for both sides
repeatedly obfuscated and misstated those facts. As a result, the Arkansas Supreme
Court ultimately ordered the ADC to recalculate the time Kelley owed on his state
2
“Concurrent sentences” are universally understood to mean “served
simultaneously.” Black’s Law Dictionary (9th ed. 2009). See Kelley v. Washington, 843
S.W.2d 797, 798, 800 (Ark. 1992) (stating that a defendant’s concurrent state and federal
sentences were “being served simultaneously” while he was in a federal institution, “so
that a day served in the federal institution would also reduce his state sentences by a day”;
parole eligibility on the concurrent state sentence was appropriately calculated as if
defendant “was physically present” in the ADC); Ellis v. State, 703 S.W.2d 452, 453-54
(Ark. 1986) (stating that, if a defendant is transferred to a federal facility to serve his
concurrent state and federal sentences as set forth in his plea agreement, “he surely will
receive credit for time served there on his Arkansas sentence”); see also Harper v. State,
865 S.W.2d 647, 648 (Ark. 1993) (holding that, after defendant completed serving a
federal sentence, the state was authorized to “reclaim” him to serve “the balance of his
state sentence,” in part because there was no “circuit court order that the state sentence
should be served concurrently with the federal sentence”); Santana v. State, 1995 WL
379981, *2 (Ark. Sup. Ct. June 19, 1995) (holding “[a]s in Ellis, ... should the appellant
begin serving time in federal custody, his state sentence will run concurrently as ordered
by his judgment and commitment order”); Freeman v. State, 1986 WL 13676, *1 (Ark.
Sup. Ct. Dec. 8, 1986) (holding that, should federal authorities accept the defendant into
federal prison to serve his state sentence concurrently with his federal sentence,
“appellant will surely receive credit for time served on his Arkansas sentence”).
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terroristic act sentence based on facts that are demonstrably untrue.
As a first order of business, counsel for both sides must stipulate to the
indisputable facts surrounding:
(1)
Kelley’s custodial status during his incarceration in the Pulaski County
Detention Center (“PCDC”) between April 5, 2004, the date he initially
entered that facility on the federal charge, and March 2, 2005, the date
he was transferred from the PCDC to BOP custody; and
(2)
The order in which Kelley actually served his federal and state
sentences.
These facts are all black and white. Counsel should have properly developed and
stipulated to them when Kelley first raised these sentencing issues in the state
mandamus proceedings. Their failure to do so has dramatically complicated the
resolution of a simple legal question: During the eight years Kelley was incarcerated
first in the BOP, did he fully discharge his two five-year state sentences, which
unquestionably began running concurrently with each other and with his federal
sentence in early 2005? It has also left counsel with much to explain about how and
why these crucially important facts were repeatedly misrepresented to the Arkansas
Supreme Court.
The first two sections of this Order state the putative indisputable facts relevant
to deciding whether Kelley fully discharged both of his concurrent five-year state
sentences during the eight years he was incarcerated in the BOP. If the answer to that
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question is yes, then Kelley has a strong argument that his incarceration in the ADC,
on and after July 12, 2012, is a violation of his rights under the Fifth and Fourteenth
Amendments. The Court then must decide whether the defenses raised by Respondent
bar it from granting Kelley habeas relief.
On June 23, 2014, the Court will conduct a hearing, during which counsel will
be asked to stipulate to the putative facts set forth in Sections I and II of this Order.
If counsel believes any of those putative facts are incorrect, they must provide the
Court with specific documents or other evidence to support their position as to the
correct facts.
Once the attorneys have stipulated to all of the relevant facts, the Court will ask
them to respond to the questions posed in Section III of this Order. The Court will
then allow each side to make arguments in support of their respective legal positions.
I.
Putative Undisputed Facts
Establishing Kelley’s Custodial Status in the PCDC
Between April 5, 2004 and March 2, 2005
1.
On April 5, 2004, Kelley was arrested by ATF agents on an indictment
charging him with being a felon in possession of ammunition. A copy of the federal
arrest warrant, marked Ex. A, is attached to this Order. See United States v. Kelley,
E.D. Ark. No. 4:04-cr-00066-SWW-1, docs. #2, #3, #9. At the time of his arrest,
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Kelley was free on state bond for allegedly committing a terroristic act. (See Resp't
Ex. J, at ADD52-53.) This state charge was pending in Pulaski County Circuit Court
(Fourth Division).3
2.
Later on April 5, 2004, Kelley appeared in the United States District
Court for the Eastern District of Arkansas, where he entered a plea of not guilty to the
charge in the indictment. The Government moved to have Kelley detained until the
final resolution of his federal criminal case. United States v. Kelley, E.D. Ark. No.
4:04-cr-00066-SWW-1, docs. #4, #7.
3.
Kelley was transported from the federal courthouse to the PCDC to await
his detention hearing. As of April 5, 2004, Kelley’s incarceration status in the PCDC
was as a “federal pretrial detainee.”
4.
On April 12, 2004, this Court conducted a detention hearing and, after
hearing evidence, ordered Kelley to be detained in the PCDC until the final resolution
of the federal charge. Id., docs. #19, #20. A copy of the Order of Detention, marked
Ex. B, is attached to this Order.
5.
On September 21, 2004, a federal jury convicted Kelley of being a felon
in possession of ammunition. Id., docs. #38, #39.
3
This Court has electronically accessed the Pulaski County Circuit Court docket
sheets, in Case No. CR2004-487 (Fourth Division) and Case No. CR2004-4380 (Second
Division), to confirm the facts relevant to those state court proceedings.
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6.
On October 22, 2004, Kelley was charged in Pulaski County Circuit
Court (Second Division) with multiple counts of forgery.
7.
The United States Marshals Service (“USMS”) maintains a prisoner log
documenting the incarceration status and movement of all federal pretrial detainees
and federal prisoners held in the PCDC. A copy of that log, marked Ex. C, is attached
to this Order.4
8.
According to the USMS log, when Kelley was required to appear in
Pulaski County Circuit Court on the two pending state charges, he was transferred
temporarily to the custody of the Pulaski County Sheriff, pursuant to a state writ of
habeas corpus ad prosequendum. After his state court appearances, he was returned
to federal custody in the PCDC. This log establishes that, throughout Kelley’s
incarceration in the PCDC, between April 5, 2004 and March 2, 2005, he was a
federal prisoner in primary federal custody.5
4
This log reflects two short intervals of time that Kelley was incarcerated in the
Tensas Parish and West Carroll Parish Detention Facilities located in north Louisiana.
The USMS has contracts with both of those facilities, and prisoners like Kelley are
sometimes transferred there, usually when the PCDC begins to approach its holding
capacity. During his time in both of those Louisiana detention facilities, he was a federal
prisoner, awaiting the final disposition of the charges pending against him in Arkansas.
5
See Elwell v. Fisher, 716 F.3d 477, 481 (8th Cir. 2013) (as between state and
federal sovereigns, the first sovereign to take physical custody of, or arrest, a defendant
retains “primary jurisdiction” until releasing that jurisdiction); United States v. Cole, 416
F.3d 894, 896-97 (8th Cir. 2005) (“Primary jurisdiction continues until the first sovereign
relinquishes its priority,” generally in one of four ways: release on bail, dismissal of
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9.
On September 24, 2004, Kelley pled guilty and was sentenced to five
years on the state terroristic act charge.
10.
On January 19, 2005, United States District Judge Susan Webber Wright
sentenced Kelley to eight years of incarceration for being a felon in possession of
ammunition.
11.
On February 10, 2005, Kelley pled guilty and was sentenced to five years
on the state forgery charge.
12.
The USMS log establishes that: (a) on March 2, 2005, federal agents
transported Kelley directly from the PCDC to the BOP’s West Tennessee Detention
Facility, where he continued serving his eight-year federal sentence, imposed on
January 19, 2005; and (b) on April 4, 2005, he was airlifted from the BOP’s West
Tennessee Detention Facility to the BOP’s United States Penitentiary in Beaumont,
Texas.
13.
According to the BOP’s Sentencing Monitoring Computation Data Sheet,
on July 12, 2012, Kelley completed his federal sentence and the BOP released him to
the custody of the ADC. A copy of that document, marked Ex. D, is attached to this
Order.
14.
Kelley did not serve a single day in the ADC from April 5, 2004, the date
charges, parole, or expiration of sentence; primary jurisdiction is not relinquished when a
defendant is temporarily “loaned” to another sovereign’s jurisdiction to face charges.).
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of his arrest on the federal charge, until he completed his federal sentence on July 12,
2012.
II.
Putative Undisputed Facts
Establishing When, Where and How Kelley’s
State and Federal Sentences Were Imposed and Served
1.
On September 24, 2004, Pulaski County Fourth Division Circuit Judge
John Langston sentenced Kelley to five years in the ADC for committing a terroristic
act. (Resp’t Ex. A.) His Judgment and Commitment Order explicitly provided that
Kelley was to serve the sentence consecutive to his not yet imposed federal sentence.6
After his sentencing, Kelley was returned to federal custody in the PCDC to await
imposition of his federal sentence.
2.
On January 19, 2005, Judge Wright sentenced Kelley to eight years in the
BOP to be served consecutively to his five-year state terroristic act sentence. (Resp’t
Ex. B.) He was returned to the PCDC, as a federal prisoner, to await the disposition
6
Ark. Code Ann. § 5-4-403(a) prohibits a state court judge from imposing a state
sentence consecutive to a yet to be imposed state or federal sentence.
In its March 1, 2012 decision granting Kelley mandamus relief, the Arkansas
Supreme Court cited that statutory language as the basis for its holding that Judge
Langston committed a “void act” in ordering that Kelley’s five-year terroristic act
sentence run consecutively to the yet to be imposed federal sentence. The legal effect of
the Court’s March 1, 2012 decision was to retroactively convert the consecutive aspect of
Kelley’s five-year state terroristic act sentence to a five-year state sentence that ran
concurrently with his eight-year federal sentence, beginning on February 10, 2005.
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of the pending state forgery charges.
3.
On February 10, 2005, Kelley pled guilty to multiple counts of forgery
in Pulaski County Second Division Circuit Court. (Resp’t Ex. C.) Judge Chris Piazza
sentenced him to five years in the ADC. The Judgment and Commitment Order
explicitly stated that the forgery sentence was to run concurrently with the previously
imposed five-year state terroristic act sentence, but was silent on whether the forgery
sentence was to run concurrently or consecutively with Kelley’s federal sentence.7
4.
After imposition of the February 10, 2005 state sentence, Kelley was
returned to the PCDC, where he remained in primary federal custody.
5.
On February 10, 2005, the PCDC provided Kelley with a document
captioned “Official Memorandum: Pulaski County Detention Facility.” It notified
Kelley that: (a) “Due to your recent conviction to the Arkansas Department of
Correction you are now required to release all personal property to a family member
or a friend . . . You must do this prior to your departure to the Arkansas Department
of Corrections.”; and (b) “Your paper work is being processed by the prosecutor’s
office. Once it is completed you will be placed on the waiting list.” A copy of that
7
Under Ark. Code Ann. § 5-4-403(b), a state sentence can only run consecutively
to a previously imposed state or federal sentence if the Judgment and Commitment Order
explicitly states that it is to be served “consecutively.” This meant, as a matter of law, that
Kelley’s five-year forgery sentence ran concurrently with his federal sentence, beginning
on February 10, 2005, the date it was imposed by Judge Piazza.
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document, marked Ex. E, is attached to this Order. After receiving this notice from the
PCDC, Kelley was not transferred to the ADC.
6.
On March 2, 2005, Kelley was transferred from the PCDC to the BOP.
Thereafter, he remained continuously in federal prison until he completed serving his
eight-year federal sentence on July 12, 2012.
7.
In a letter dated July 20, 2007, Roy Agee, Classification Administrator
for the ADC, wrote Kelley in response to “Your Letter.” A copy of Agee’s letter,
marked Ex. F, is attached to this Order. Agee’s letter enclosed an “Arkansas
Department of Correction Time Computation Card,” which is also dated July 20,
2007. A copy of the Time Computation Card, marked Ex. G, is attached to this Order.
8.
The Time Computation Card reflects that Kelley’s “Transfer Eligibility
Date”8 on his forgery sentence is November 16, 2005, but only if he earns “all good
time which can be earned based on your current class.” His “Discharge Date” is
September 18, 2009, which means he would be released on that date if he earned no
good time credit, and served his full five-year sentence, less the 144 days that Judge
Piazza’s Judgment and Commitment Order credited to him for the time he spent in the
PCDC. The Time Computation Card made it clear that Kelley might become eligible
8
Under the Arkansas statutes, an inmate’s "transfer eligibility date" is the earliest
date he becomes eligible for transfer from the ADC to less restrictive placement or
supervision by the Department of Community Correction, which may include parole. Ark.
Code Ann. §16-93-1202(2), (4), (11) & (12)(A).
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for parole as early as November 16, 2005 – not that he was actually paroled on that
date.
9.
Agee’s letter and the Time Computation Card are silent as to Kelley’s
terroristic act sentence.
10.
The Time Computation Card reflects Kelley’s “Housing” as “Unknown,”
and his “Location” as “AR CC Sentences TOS,” which means he was serving
concurrent Arkansas sentences and had been transferred out of state (“TOS”). Thus,
as early as July of 2007, the ADC records department knew that Kelley: (1) was under
concurrent Arkansas sentences; (2) was not in ADC custody; and (3) was in BOP
custody in Beaumont, Texas, the address where Agee mailed his July 20, 2007 letter.
11.
On September 11, 2007, ADC Records Supervisor Shelli Maroney wrote
Kelley at his BOP address in Beaumont, Texas and advised him that: (a) they had just
“discovered” his state terroristic act sentence, which had “not been entered into the
[ADC] system”; and (b) because that sentence explicitly ran consecutively to his eightyear federal sentence, it would “not begin until the day you are released from the
Feds.” A copy of Maroney’s letter, marked Ex. H, is attached to this Order.
12.
On December 10, 2007, Kelley wrote Maroney and told her that the
consecutive five-year terroristic act sentence was “illegal.” A copy of Kelley’s letter,
marked Ex. I, is attached to this Order.
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13.
On January 28, 2008, Maroney wrote Kelley a letter advising him that:
(a) she had “called the Feds” and learned that his federal sentence was imposed on
January 19, 2005, “which is after you were sentenced by Pulaski Co on docket 2004487 to run consecutive to your Federal sentence” (emphasis added); (b) she “agree[d]
that Pulaski Co can not run their sentence consecutive due to you not being sentenced
to the Fed time as of that date” (emphasis added); (c) she had contacted “Centralized
Records” to “take the steps to correct this,” and Centralized Records was “in the
process of asking Pulaski County to amend their sentence to correct their error”
(emphasis added); and (d) as soon as an “Amended J&C” was received, the ADC
would “correct the consecutive sentence” (emphasis added); and she would send him
a Time Computation Card reflecting the correct discharge date on the terroristic act
sentence. A copy of Maroney’s letter, marked Ex. J, is attached to this Order.
14.
Some time between January 28, 2008 and February 8, 2008, Maroney
communicated with “Darnisha,” an Assistant Attorney General, about the need to
correct the “consecutive” aspect of Kelley’s terroristic act sentence, which Maroney
believed was invalid.
15.
On February 8, 2008, Maroney wrote Kelley to advise him that: (a) she
had “turned all the information [on his terroristic act sentence] over to the Arkansas
Attorney General’s Office”; (b) “[a]ccording to Darnisha, Asst Attorney General in
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the State of Arkansas, the prior action stands. Your [terroristic act sentence] is legal
and entered correctly”; and (c) “You will be required to return to Arkansas to serve
your 5 year sentence in the Arkansas Department of Corrections, that is consecutive
to your Federal sentence.” A copy of Maroney’s February 8, 2008 letter, marked Ex.
K, is attached to this Order.
III.
Issues Counsel Should Be Prepared to Address
During the June 23, 2014 Hearing
A.
Maroney’s Efforts to Correct Kelley’s Terroristic Act Sentence in
January of 2008.
As the Arkansas Supreme Court later made clear in its March 1, 2012 decision,
in every respect, Maroney’s January 28, 2008 letter to Kelley was correct: (a) Judge
Langston erred in running Kelley’s terroristic act sentence “consecutive due to you
[Kelley] not being sentenced to the Fed time as of that date”; (b) the ADC records
department correctly began “the process of asking Pulaski County to amend their
sentence to correct their error”; and (c) this would require the ADC records
department to “correct the consecutive sentence,” i.e., change its records to reflect that
the terroristic act sentence ran concurrently with the federal sentence.
If Maroney had been allowed to fix this obvious sentencing error, in January of
2008, ADC records would have reflected that both of Kelley’s five-year state
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sentences ran concurrently with each other and with his federal sentence, which he
had begun serving on January 19, 2005. Under well-established Arkansas case law,
this would have meant that Kelley “surely will receive credit for time served there
[federal prison] on his [concurrent] Arkansas sentence.” Ellis, 703 S.W.2d at 453-54.
Accord Santana, supra at *2 (holding “[a]s in Ellis, ... should the appellant begin
serving time in federal custody, his state sentence will run concurrently as ordered by
his judgment and commitment order”); Freeman, supra at *1 (holding that, should
federal authorities accept the defendant into federal prison to serve his state sentence
concurrently with his federal sentence, “appellant will surely receive credit for time
served on his Arkansas sentence”). This would have meant that Kelley’s ADC
discharge date, on both of those state sentences, was no later than February 10, 2010.
If all of this had occurred, as it should have, the BOP would have released Kelley to
the free world on July 12, 2012.
Ironically, this did not occur because a lawyer in the Attorney General’s Office
provided Maroney with an erroneous legal opinion about well-established Arkansas
law, and this prevented Maroney from correcting Kelley’s invalid terroristic act
sentence on a timely basis.
On September 8, 2009, Respondent’s counsel filed a Response to Kelley’s pro
se Petition for Writ of Mandamus, in Jefferson County Circuit Court. (Resp’t Ex. H.)
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In footnote 1 of that Response, Respondent’s counsel admitted the following: “Under
Ark. Code Ann. § 5-4-403(b), the circuit court [Judge Langston] could sentence
Petitioner to a term of imprisonment, however, it could not order his sentence to [be]
served consecutively to his federal case because he had not yet been sentenced
federally at that time.” This is precisely what Maroney knew and had tried to fix
nineteen months earlier!
Respondent’s counsel should be prepared to explain: (1) how and when the
Attorney General’s Office discovered “Darnisha’s” error and who specifically
made that discovery; (2) the date the Attorney General’s Office first contacted
Maroney, or someone else in the ADC’s records department, to advise them that
Kelley’s ADC records needed to be changed to reflect that he was serving two
five-year state sentences that ran concurrent with each other and with the federal
sentence; and (3) the name of the person in the ADC’s records department who
first discovered Kelley had begun serving his federal sentence first, without having
ever served a single day in the ADC; the date this discovery was made; what
specifically led to this discovery; and the date and name of the person in the
Attorney General’s Office to whom this information was first conveyed.
B.
Kelley’s Initial § 2254 Habeas Action.
On April 29, 2008, Kelley filed a pro se § 2254 habeas action challenging the
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way the ADC was crediting his prison time among his state and federal sentences.
(Resp’t Ex. D.)
On August 13, 2008, Respondent filed a Motion to Dismiss arguing that Kelley
had failed to exhaust his available remedies in state court. (Resp’t Ex. E.) This Motion
accurately stated that “Kelley is currently in federal custody serving a sentence of 96
months for being a felon in possession of ammunition.” (Id. at 1.) It went on to
reference his September 24, 2004 terroristic act sentence, and his February 10, 2005
forgery sentence, but stated nothing about Kelley having served his state forgery
sentence first, before being transferred to BOP custody to begin serving his federal
sentence.
Exhibit J to Respondent’s Motion to Dismiss contained various ADC records
department documents related to Kelley’s state court sentences. Page 4 of Exhibit J
is a Status Assignment Sheet dated July 28, 2008. A copy of that document, marked
Exhibit L, is attached to this Order. This document makes it clear that, as of February
10, 2005, Kelley was scheduled to be transferred out of state (“OOS”) (not in state
custody [“ISC”]) to begin serving an “unknown” federal sentence in the “US Pen.” It
also reflects that, on February 24, 2005 and April 21, 2005, Kelley was on a “Pulaski
County Backup List” awaiting transfer to the ADC. Nothing in this document reflects
that Kelley was ever actually transferred to the ADC to begin serving either of his
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state sentences. To the contrary, it reflects that Kelley was serving his federal sentence
first.
Finally, this document reflects that, during the time Kelley was serving his
federal sentence, he became eligible for parole on his state forgery sentence on April
25, 2006 – not November 16, 2005, the date the ADC records department later used
to give Kelley approximately nine months of credit on his terroristic act sentence.9
Based on the content of this document, the ADC unquestionably acknowledged that,
while Kelley was serving his federal sentence in the BOP, he was entitled to receive
“day for day credit” on his state forgery sentence, which ran concurrently with the
federal sentence.
A fair reading of this document makes it clear that Kelley was incarcerated first
in the BOP – not the ADC. Certainly, nothing in this document suggested that Kelley
was first incarcerated in the ADC on his forgery sentence and then paroled and
transferred to the BOP, on either November 16, 2005 or April 25, 2006, to begin
serving his federal sentence.
On February 26, 2009, this Court entered a Memorandum and Order dismissing
Kelley’s § 2254 habeas Petition, without prejudice, on the ground that, before he
9
If the April 25, 2006 date is correct, even under the ADC’s recalculation of his
terroristic act sentence, Kelley would have been entitled to fourteen months of credit on
his terroristic act sentence – not nine months.
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could properly pursue federal habeas relief, he must exhaust his state court remedies
by filing a declaratory judgment action and mandamus proceeding in state court
challenging the way the state was crediting his prison time among his state and federal
sentences. Kelley v. Norris, No. 5:08cv00122-JTR (E.D. Ark. Feb. 26, 2009) (Resp’t
Ex. F).
C.
State Court Mandamus Proceeding.
On July 17, 2009, Kelley filed a pro se Petition for Declaratory Judgment and
Petition for Writ of Mandamus in Jefferson County Circuit Court. (Resp’t Ex. G.)
Among other things, Kelley argued that the way the state had run and credited his
state and federal sentences was a “direct violation of the Fifth and Fourteenth
Amendment of the Constitution of the United States of America.” (Id. at 6.)
On September 8, 2009, Respondents filed their Response, (Resp’t Ex. H), which
contains statements of fact that are in direct conflict with the facts contained in the
ADC documents attached to Respondent’s earlier Motion to Dismiss Kelley’s § 2254
habeas action. Specifically, Respondent’s counsel states the following crucially
important facts to be true:
Although [Kelley’s] forgery sentence was to be served concurrently with
his terroristic-act sentence, he served his time in the ADC on the forgery
[sentence] alone, was then paroled to the BOP [to begin serving his
federal sentence], and is now pending his return to the ADC to serve his
sentence on the terroristic-act conviction. See Petitioner’s Exhibit A and
B.
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(Id. at 2 n.3.)
The Court has carefully reviewed “Petitioner’s Exhibit A and B.” Nothing in
any of those documents supports any of the foregoing facts – none of which are true.10
Furthermore, some of the information contained in Exhibit B directly controverts
10
Exhibit A consists of the two state Judgment and Commitment Orders, the
federal Judgment and Commitment Order, and a short excerpt from the transcript of
Kelley’s January 19, 2005 federal sentencing in which the Court suggested that Kelley
may have already begun serving his state terroristic act sentence. Nothing in those
documents comes close to proving that Kelley “served his time in the ADC on the forgery
alone, was then paroled to the BOP, and is now pending his return to the ADC to serve
his sentence on the terroristic-act conviction.”
The first document in Exhibit B is an “Official Memorandum: Pulaski County
Detention Facility” dated “2-10-05.” It explains to Kelley that, because of his “recent
conviction to the Arkansas Department of Correction you are now required to release all
personal property to a family member or a friend. ... You must do this prior to your
departure to the Arkansas Department of Corrections.” Nothing in this PCDC document is
evidence that, on or after February 10, 2005, Kelley was released from the PCDC to the
custody of the ADC, to begin serving his September 24, 2004 or February 10, 2005 state
sentence.
The second document in Exhibit B is the July 20, 2007 letter to Kelley from Roy
Agee, Classification Administrator at the ADC, along with the ADC “Time Computation
Card.” See Ex. F and Ex. G to this Order. Together, these documents inform Kelley that,
on his forgery sentence, he has a “Transfer Eligibility Date” of “11/16/2005" and a
“Discharge Date” of “09/18/2009.” Obviously, there is an important distinction between
the date a prisoner becomes “eligible for parole” and the date a prisoner is actually
paroled. If Kelley had, in fact, been paroled on November 16, 2005, the Time
Computation Card’s “Release Dates” would have reflected “Paroled: 11/16/2005,” not
“Transfer Eligibility Date: 11/16/2005.” In the same vein, the Time Computation Card
reflects the “Location” where Kelley is incarcerated as “AR CC Sentences TOS.” Those
abbreviations appear to mean that Kelley has at least two “Arkansas concurrent
sentences” and his current “Location” is “Transferred Out of State,” i.e., he is currently
incarcerated outside the State of Arkansas serving a federal sentence. Similarly, Kelley’s
“Housing” is listed as “Unknown.” Suffice it to say, nothing in Exhibit B established that,
as of July 20, 2007, Kelley had served a single day in the ADC on either of his state
sentences, much less that he had been paroled on November 16, 2005 and transferred to
BOP custody.
-20-
those facts. Finally, it appears Respondent’s counsel either overlooked or ignored
page 4 of Exhibit J to Respondent’s Motion to Dismiss Kelley’s initial habeas action.
If she had reviewed that document, and the much different recitation of facts
contained in Respondent’s Motion to Dismiss, she would have realized that none of
the purported facts about Kelley serving his state forgery sentence first in the ADC
and then being paroled to the BOP to serve his federal sentence (which was ordered
to run consecutively to his state terroristic act sentence) were true.
1.
Things Respondent’s Counsel Should Be Prepared to Explain.
Respondent’s counsel should be prepared to explain the factual basis for
the sentencing chronology provided in her September 8, 2009 Response to
Kelley’s Petition for Writ of Mandamus filed in Jefferson County Circuit Court
and later repeated in Appellee’s Brief filed with the Arkansas Supreme Court.11
11
The ADC maintains numerous records that document everything that takes place
from the time a prisoner is taken into its custody until the time he is released. This long
chain of documents includes the following: (1) transport papers documenting the date the
ADC assumes physical custody over a prisoner from a county holding facility; (2)
documentation establishing the date a prisoner is initially admitted to the Diagnostic Unit
for his intake physical; (3) documentation establishing the date he is assigned a work
classification; (4) documentation establishing the date he is assigned to one of the ADC's
incarceration facilities; (5) documentation establishing the date of his initial parole
hearing; (6) documentation establishing the parole panel’s actual decision on whether he
should be paroled; (7) documentation establishing the actual date a prisoner is paroled;
and (8) documentation establishing the date he is transferred to the custody of the BOP to
begin serving his federal sentence.
It appears that, before making the crucially important factual misrepresentation to
the Arkansas Supreme Court, about the order in which Kelley had served his state and
federal sentences, neither Respondent’s counsel nor anyone else in the ADC’s records
-21-
(See Resp’t Ex. H, at 2 n.3; Resp’t Ex. K, at ARG2 n.2.) She should be prepared
to identify all of the ADC documents and the ADC employees she relied on to
support her factually erroneous representation to the Arkansas Supreme Court
that, after the imposition of Kelley’s February 10, 2005 forgery sentence, he was
incarcerated first in the ADC “on the forgery [sentence] alone” and, after serving
approximately nine months of that sentence, was erroneously paroled to the BOP
to begin serving his federal sentence, because the ADC’s records department had
failed to note Kelley’s five-year terroristic act sentence.12 Finally, she should be
prepared to explain whether she reviewed page 4 of Exhibit J to Respondent’s
Motion to Dismiss and, if not, why she failed to review that document and the
much different statement of facts contained in Respondent’s Motion to Dismiss
department reviewed any of Kelley’s ADC records to confirm those facts. Had they done
so, they would have discovered that no such documents existed, which could mean only
one thing: Kelley was never incarcerated in the ADC for a single day before he began
serving his federal sentence.
12
At the time his state sentences were imposed, Kelley had a prior conviction for
second-degree murder, a “violent felony offense” under Ark. Code Ann. § 5-4501(d)(2)(A)(ii). Under Ark. Code Ann. § 16-93-609(b), this meant he was not entitled to
be paroled on his September 24, 2004 sentence for committing a terroristic act, another
“violent felony offense.” Id. § 5-4-501(d)(2)(A)(vii). (See Resp’t Ex. E, at 4-5; Resp’t Ex.
J, at ADD28, ADD33.) However, because forgery is not a “violent felony offense,”
Kelley was eligible to be paroled on that sentence.
All of these facts would be relevant only if Kelley had been incarcerated first in
the ADC, on his forgery sentence, and then was mistakenly paroled to the BOP to begin
serving his federal sentence, based on the ADC’s records department being unaware of
Kelley’s terroristic act sentence. Of course, because none of those facts are true, all of
this is utterly irrelevant.
-22-
filed in the federal habeas action on August 13, 2008.
2.
Things Kelley’s Counsel Should Be Prepared to Explain.
Kelley’s counsel should be prepared to explain why Kelley failed to object
to these untrue facts and let the Jefferson County Circuit Court know the
following true facts: (1) after his February 10, 2005 sentencing on his forgery
conviction, he remained in the PCDC until March 2, 2005, when he was
transferred to the BOP to begin serving his federal sentence; and (2) as of
September 8, 2009, the date Respondent filed his Response to Kelley’s Petition
for Writ of Mandamus, Kelley had been incarcerated continuously in the BOP
and had not served a single day in the ADC.
Kelley’s counsel should also be prepared to explain why, after being
retained to represent Kelley on his appeal to the Arkansas Supreme Court, they
independently failed to develop the crucially important and readily available true
facts about the order in which Kelley had served his federal and state sentences.
In their Appellant’s Brief, they explicitly acknowledged the accuracy of
Respondent’s chronology of events surrounding the order in which Kelley had
served his state and federal sentences. (Resp’t Ex. J, at ARG15.) Kelley’s counsel
should be prepared to explain in detail the full extent of their independent
investigation of those facts before they acknowledged the accuracy of a
-23-
chronology of events that was completely untrue.
Kelley’s counsel should be prepared to explain why, after they provided
Kelley with a copy of Appellant’s Brief, he failed to set the record straight about
the true facts establishing that he was serving his federal sentence first and, as
of the date the Appellant’s Brief was filed, he had never served a single day in the
ADC.
Finally, Kelley’s counsel should be prepared to explain why, in the
“Statement of the Case” section of Appellant’s Brief, they misrepresented to the
Arkansas Supreme Court the same untrue facts about the order in which Kelley
had served his state and federal sentences contained in Respondent’s Response
to Kelley’s pro se Petition for Writ of Mandamus filed in Jefferson County
Circuit Court. (Resp’t Ex. J, at SOC1-3.)
D.
The Arkansas Supreme Court’s March 1, 2012 Decision.
On March 1, 2012, the Arkansas Supreme Court entered its decision granting
Kelley’s request for mandamus relief based on its conclusion that, to the extent Judge
Langston had ordered Kelley’s September 24, 2004 terroristic act sentence to be
served consecutive to his yet to be imposed federal sentence, he had acted without
authority and the consecutive aspect of that sentence was void. Because Kelley’s
terroristic act sentence was now silent as to how it ran with regard to his federal
-24-
sentence, Ark. Code Ann. § 5-4-403 required it to run concurrently with the federal
sentence, as of January 19, 2005, the date the federal sentence was imposed.
The Arkansas Supreme Court then gave the ADC instructions on how to
calculate and credit approximately nine months of time Kelley had purportedly served
in the ADC on his forgery sentence against his terroristic act sentence, which the ADC
allegedly did not know about at the time it mistakenly paroled Kelley to the BOP to
begin serving his federal sentence. All of the Arkansas Supreme Court’s sentence
calculation instructions to the ADC were based on patently untrue facts that counsel
for both sides had misrepresented to the Court.
E.
Respondent’s March 19, 2012 Petition for Rehearing.
On March 19, 2012, Respondent’s counsel filed a Petition for Rehearing
(Resp’t Ex. M), in which she admitted making the following material
misrepresentations of fact about the order in which Kelley had served his state and
federal sentences:
Respondent’s counsel “mistakenly believed that Appellant had served time in
the ADC [before he began serving his federal sentence].” (Id. at 1.)
“[T]he State is now aware that Appellant has served no time in the ADC for his
State convictions [before he began serving his federal sentence].” (Id. at 3.)
“The documentation from the ADC evincing Appellant’s entry into ADC
custody and serving his State sentence via a discharge date for the forgery
sentence ... indicates a mistake of fact by the ADC, which was misinterpreted
by all parties involved.” (Id. at 4.)
-25-
No explanation is given as to how this mistake happened; the specific ADC
documents Respondent relied on to support these untrue facts; or the names of “all
parties” who were involved in “misinterpreting” those ADC documents.13
During the June 23, 2014 hearing, Respondent’s counsel must provide the
Court with copies of the specific “documentation from the ADC evincing
[Kelley’s] entry into ADC custody and serving his state sentence via a discharge
date for the forgery sentence” and be prepared to identify the specific facts in
that documentation which supported the misstatements of fact she had made
earlier to the Jefferson County Circuit Court and the Arkansas Supreme Court
about the order in which Kelley had purportedly served his state and federal
13
The Petition for Rehearing also makes a new, conclusory and legally
unsupportable argument that, based on these “new facts,” all of Kelley’s time in the BOP
should be deemed “dead time,” i.e., none of that time should be credited against either of
his five-year state sentences, which now unquestionably ran concurrently with each other
and with the federal sentence. On April 19, 2012, the Court summarily denied
Respondent’s Petition for Rehearing, without discussion, and implicitly rejected this
dead-time argument. (Resp’t Ex. N.)
Undeterred, Respondent reasserted the dead-time argument in a Response to
Kelley’s Petition for Writ of Mandamus or Alternative Relief for Enforcement of
Supreme Court’s Order, filed on October 8, 2012. (Resp’t Ex. P.) In a per curiam Order,
entered on October 25, 2012, the Arkansas Supreme Court made it clear that it had
considered and explicitly rejected Respondent’s “dead time” argument:
The ADC asserts that Kelley “has served no time on his State sentences”
and that time served [in the BOP] is “dead time.” This specific argument
was presented by the ADC in its petition for rehearing in Kelley and
rejected by this Court.
Kelley v. Hobbs, 2012 Ark. 402, at *2.
-26-
sentences.
F.
Kelley’s Response to Respondent’s Petition for Rehearing.
Based on the Arkansas Supreme Court’s March 1, 2012 decision, these new
facts meant that, as of February 10, 2005, both of Kelley’s five-year state sentences
began to run concurrently with each other and with the eight-year federal sentence that
Kelley began serving on January 19, 2005. Under those new facts, Kelley would have
flattened and fully discharged both of his state sentences no later than February 10,
2010. Thus, these new facts provided Kelley with the basis for a new legal argument
that, upon his release from the BOP in 2012, he would be a free man.
It was vitally important for Kelley’s counsel to make these new facts part of the
appellate record in the mandamus proceeding before the Arkansas Supreme Court.
Otherwise, Kelley would be barred from making the new argument that, based on
these new facts, he had fully discharged both of his concurrent five-year state
sentences by simultaneously serving that time in federal custody, between February
10, 2005 and February 10, 2010. To accomplish this, Kelley was required to either
join in Respondent’s Petition for Rehearing or file his own Petition for Rehearing.
Had he done either of those things, the Arkansas Supreme Court would have had little
choice except to grant the joint request for rehearing so that it could consider these
new and much different facts, and how they impacted the amount of time that should
-27-
now be credited against Kelley’s state sentences.
Instead of doing what was required to be done to get these new facts before the
Arkansas Supreme Court, Kelley’s counsel filed a Response14 that argued the Court
should dismiss Respondent’s Petition for Rehearing because: (1) “The rehearing
petition is based on facts that the Attorney General failed to develop at the circuit
court and which are not reflected in the record on appeal,” (Ex. M, at 1); (2)
Respondent is requesting the Court to “repudiate [the facts in] the record [about the
order in which Kelley had served his state and federal sentences] in favor of the
hearsay referenced in the petition,” (Id. at 4); (3) Respondent’s counsel “failed to
exercise due diligence in asserting error in the record undermining the credibility of
the arguments before the Court, (Id.); and (4) “The Attorney General’s petition abuses
appellate process,” (Id. at 5).
Kelley’s counsel then took the extraordinary step of arguing that the untrue
facts in the record (which Respondent’s counsel had now admitted were untrue) were
in fact true: “The record unequivocally shows that [Kelley] was transferred from the
Pulaski County Detention Facility to ADC following his conviction on the forgery
charge in Division 2 of Pulaski County Circuit Court. (ADD. 24/R. 23). ADC then
notified [Kelley] of his discharge date. (ADD. 25/R. 24).” (Id. at 7.)
14
A copy of Kelley’s Response to Petition for Rehearing, marked Ex. M, is
attached to this Order.
-28-
Of course, none of the documents cited by Kelley’s counsel establish that he
“was transferred from the [PCDC] to ADC following his [forgery] conviction.” (See
Ex. E, F & G to this Order.) Furthermore, before making that argument, Kelley’s
counsel appears to have done nothing to confirm with Respondent’s counsel or with
their own client whether those new facts were true and obtained documents from the
ADC or BOP to confirm the accuracy of those facts. Kelley’s counsel concluded their
Response by requesting the Arkansas Supreme Court to “deny the Attorney General’s
petition for rehearing in this cause.” (Ex. M, at 10) (emphasis added).
On April 19, 2012, the Arkansas Supreme Court Clerk sent the attorneys a letter
notifying them that the Court had issued an Order stating that: “Appellees’ petition for
rehearing is denied.” (Resp’t Ex. N.) Thus, Kelley had successfully defeated
Respondent’s attempt to get the true facts about the order in which Kelley had served
his federal and state sentences before the Arkansas Supreme Court and lost the
opportunity to make the new argument that, under those true facts, Kelley had fully
discharged both of his concurrent state sentences during his incarceration in the BOP.
Kelley’s counsel should be prepared to explain the investigation they
undertook to determine if the “true facts” contained in Respondent’s Petition for
Rehearing were in fact true. Did they talk to Respondent’s counsel to determine
the documents that she was relying on to corroborate these “new facts”? Did they
-29-
place a telephone call or write a letter to Kelley, who was clearly in a position to
know if those new facts were true, and ask him to corroborate the accuracy of the
facts? Did they contact the United States Marshals Service or the BOP to obtain
the documents to confirm the accuracy of these “new facts”?
Kelley’s counsel should also be prepared to explain the specific facts that
they were relying on to argue, contrary to Respondent’s assertion in the Petition
for Rehearing, that these new facts were not true.
Finally, Kelley’s counsel should be prepared to explain why they believed
it was in Kelley’s best interest for these new facts not to be made part of the
appellate record so that they could preserve and make the new legal argument
on rehearing that Kelley had unquestionably discharged both of his concurrent
five-year state sentences no later than February 10, 2010?
G.
November 29, 2012 Compliance Hearing Before the Arkansas Supreme
Court.
Counsel for both sides should carefully review the transcript of the
November 29, 2012 compliance hearing before the Arkansas Supreme Court15
and be prepared to answer the Court’s questions arising from what took place
15
As directed by this Court, Respondent has provided a transcript of the November
29, 2012 hearing before the Arkansas Supreme Court. (Resp’t Ex. W, attached to Doc.
#16.)
-30-
during that hearing.
IT IS SO ORDERED this 5th day of June, 2014.
______________________________________
UNITED STATES MAGISTRATE JUDGE
-31-
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case 4:04-cr-00066-SWW Document 9 Filed 04/06/04 Page 1 of 1
n
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~A u.fo(I,.ED
liOI'\STERN DIST~~g COURT
ARKANSAS
United States District Court
APR 0 6 2001t
_ _.E""'a"""s""'te~m~_District of_~A;:.:;r..::k:an~s<;:::as~-.JJ.AMES W M
.By:
.
UNITED STATES OF AMERICA
v.
WARRANTFORARREST
.JOE LEWIS KELLY, JR.
Case Number: 4:04CR00066 S'VW
To: The United States Marshal
and any Authorized United States Officer
YOU ARE HEREBY COMMANDED to arrest JOE LEWIS K.ELLY. JR. and bring him or her
forthwith to the nearest magistrate judge to answer a(n)
Jli( Indictment 0 Information D Complaint Cl Order of 0 Probation
Court
Violation
Petition
Cl Supervised Release Cl Violation
Violation Petition
Notice
charging him or her with (brief description of offense)
Possession of firearm by convicted person
As better described in the attached copy of the indictment.
In violation ofTitle .!1 United States Code, Section(s) 922(g)(l)
CLERK. EASTERN DISTRICT OF ARKANSAS
Title of Issuing Officer
March 17. 2004 at Little Rock, Arkansas
Date and Location
RETURN
This warrant was received and executed with the arrest of the above named defendant at:
Name and Title of Arresting Officer
Signature of Arresting Officer
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EXHIBIT
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Case 4:04-cr-00066-SWW Document 20 Filed 04/12/04
"
AO 472 (Rev. 3/86) Order ofDetention Pending Tnal
United States District Court
EASTERN DISTRICT OF ARKANSAS
UNITED STATES OF AMERICA
· ·
v.
APR 12..2004
JAMES W M
By:
. cC~ CLERK
ORDER OF DETENTION PENDING I
Case Number: 4:04CR00066 SWW
Defendant
In accordance with the Bail Reform Act, 18 U.S.C. §3142(1), a detention hearing has been held. I conclude that the following facts require the
detention of the defendant pending trial in this case.
Part 1-Findings of Fact
The defendant is charged with an offense described in 18 U.S.C. §3142(1)( I ) and has been convicted of a (federal offense) (state or
(I)
al otfense that would have been a federal offense if a circumstance! giving rise to federal jurisdiction had existed) that is
- acrimeofviolence as defined in 18 U.S.C. §3156(a)(4).
an offense for which the maximum sentence is life imprisonment or death.
an offense tor which a maximum tenn of imprisonment often years or more is prescribed in - - - - - - - - - JOE LEWIS KELLY, JR.
0
~
0
p
D.
0
0
0
a felony that was committed after the defendant had been convicted of two or more prior federal offenses described in
18 U.S.C. §3142(1)( IXA)-(C), or comparable state or local offenses.
(2) The offense described in finding (I) was committed while the defendant was on release pending trial for a federal, state or local
offense. -(3) A period of not more than five years has elapsed since the (date of conviction) (release of the defendant from imprisonment) for the
offense described in finding (1).
(4) Findings Nos. (1), (2) and (3) establish a rebuttable presumption that no condition )l;LCombination of conditions will reasonably
assure the safety of(an)other person(s) and the community. I further find that the defendant has not rebutted this presumption.
Alternative Findings (A)
(I) There is probable cause to believe that the defendant has committed an offense
B
for which a ma:t Correction. M$. ·Maroney, since_ the Juogement and Commitment Order- Form· provides
i
the ·DOC with their legal basis for taking custody of an inma·te to deviate from
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EXHIBIT
Case 5 :13-cv-00161-JLH-JTR Document 7-11 Filed 06/19/13 Page 69 of 125
Joe Ke11ey·84474b
Request for Informal Resolution
the basic information within the Judgement and Commitment ·order is a violatioMof
the Privacy Act; which only needs three elements for a claim of damages !)inaccurate
records, 2) agency intenL and 5) proximate causation. Iry closing, Ms. Maroney, I
.advis.e you to read .both .Judgement .ana Commitment er.ders. carefully .. (.docket numbers
.
.
.
. .
.
~
CR- 2004~4380 and CR -2004-487)
This lett·er is intended as a request for Informal Resolution and a speedy
response would be greatly appreciated.
Failure. to resi?Ond to this request for Informal Resolution will be construed
as an implicit denial.
Thanking you in advance·.
e Kelley #21350-009
ADC# 84474b
ADD--32
.
case 5:13-cv-00~61~JLH-J
.' .
·,led 06/19/13 Page 73 of 125
TR Document 7~ 11 F
.
.
.
·'
~-~UFSiit.~
·~~~~·~~~.amt--··~~-
To:
Inmate joe Kelley
From:
Shelli· Maroney'· Records SU:pervis9r
Diagnosti~ Unit~ · · ·
·
Date:
·January 28, 2008
Re:.
ADC#084474
Your letter
After. I rec'd your certified letter, I called the Feds and inquired about
· your .date of sentence mi your Federal· ti~e. Your sentence to the Fed's
was 1119/05, which is after you were sentenced by Pulaski Co on docket
2004-487 to run c~nsecutive to your Federal sentence.
I ag:ree that Pulaski C9 can not run their sentence consecutive due ~o
. you not being sente.nced to the Fed time as of that date.
I se~t an email and a fax to Centralized Records (Miriam) te-please ta~e
the steps to C-orrect this. Centralized ~eco.rds is i~ the process ofasking
Pulaski. County to amen.d .their.. senten~ejq corre~.t t~ei~.error.
.
As soon as we rec·~ive th.e amend.ed. J~C, they.wiii :corr.ec(the
co~secutive sentence ·~:m d I ·will' s·end you a lette.r with a new time card.
I will also .notify the necessary Qffices and persop.s of this correction ·
·
·
when it is made. .
cc: Mr. Toney
Inmate File
ADD~-36
EXHIBIT
000035
Case 5: 13-cv-00161-JLH-JTR
'
Document 7-11 Filed 06/19/13 Page 74 of 125
.
,,.;,;.t7,..,.,...,,....,
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"""iliaII'"'- ~· ;••:~n;;liJJ'\ v.a.. .;............._.....,;, .
'!I;.VI•r:~IOh.
ftli!IM'IIt.•~.......A.
To:
Inmate Joe Kelley
From:
Shelli Maroney,~o~s ~uperv~sor
Diagnostic Uni~·y ~
Date:
·February 8, 2008
Re:
Your ·Consecutive sentence
.
ADC# 084474
.
In reference to your letter stating tQ.at the Ark~nsas Department of
Corrections had an illegal sentence entered on you, we turned all the.
·information ove~ to the Arkansas Attorney General's Office.
.
.
· Accor9-ing to Darliisha, Asst Attorney ·General in the State of Arkansas,
the prior action stands. Your sentence is legal and entered correctly.·
You will be r_equir~d to return to Arkansas to serve your 5 year sentence
in the Arkansas Department of Corrections, that is consecutive to your ·
Fede.ral senten-ce. ·
·
cc: Mr. Toney
. Inmate Fn~·
ADD--37
EXHIBIT
IL
Case 5:08-cv-00122-JTR Document 11-11 Filed 08/13/08 Page 4 of 6
ARDOC
'
REfORT NO. IPTR103 - 01
STATUS ASSIGNMENT SHEET
FROM: 02110/2005 TO: 07/28/2008
I
PAGE:
I of
PROCESSED: 07/28/2008 03:45 PM
REQUESTOR: Sharon Peyton
ADC#: 084474B NAME:Kelley, Joe Louis Jr
STATUS: Temporary
BIRTH:07/29/1963
SSN: 571-I9-9181
D~
Absent
T E - MED: UN
SEX: M AGE: 44 FBI N0:20422EA8
RACE: Black
SID NO: 00516934
CL: I-C
CUR LOC: AR CC Sentences TOS
TERMST. 3
CUS: Medium
SCORE: 23
READ: 0
DNA: NOT REQUIRED 03/04/2005
BETA: 0
NAME:
WRAT:
0
FOOD: N
Kelly, Joe Louis Jr (TRUE)
Kelly, JoeL Jr ("ALIAS")
Kelley, JoeL Jr ("ALIAS")
Cat, Unknown (''ALIAS")
SENTENCING SUMMARY
p3/04/05: 5yrs rec'd 02/10/05 in Pulaski co on 2004-4380 {hab) with 144 days jtc.
p9!11/07: ENTERED A 60 MONTH SENTENCE ON DK 2004-487 FROM PULASKI COUNTY RECEIVED 09/24/04 (FOUND IN
~ACKET}. UNDER ACT 1805 DOES NOT EARN GOOD TIME AND IS NOT ELIGIBLE FOR PAROLE. SUBJECT FALL UNDER
~CT 1805 DUE TO A PRIOR MURDER 2ND CHARGE. (25 DAYS JAIL TIME CREDIT) TIME IS RUNNING CONSECUTIVE TO
HIS FEDERAL TIME. 2849 DAYS DEAD TIME GIVEN. MS
EVENT
DATE
EVENT TYPE
CATEGORY
09/28/2007 Board Hearing Rescind (TE) Screening
04/25/2006
04/25/2006
04/21/2005
02/24/2005
02/10/2005
Credit/Debit
Board Hearing
Custody
Custody
Movement
02/10/2005 [Movement
Good Time Class Change
rrransfer Screening
System Generated
System Generated
[New Commitment
Transfered OOS (not ISC)
02/10/2005 Credit/Debit
!Admission
System Generated
02/10/2005 Custody
Parole Hearing
04/1111996 !Board Hearing
FACILITY
AR CC Sentences TOS
AR CC Sentences TOS
County Backup List
Pulaski County Backup List
Pulaski Co. Sheriff/ AR CC
Sentences TOS
US Pen - Unknown/ AR CC
Sentences TOS
~ulaski
.
Pulaski County Backup List
Cummins Unit
DETAILS
Prior(Hearing)ActJOn Stands
Transfer To DCC Supervision
~..-lass I-C- Parole Board Action
[fransfer To DCC Supervision
~2 to C3
~2 to C2
~
CC Snt. Other State
~..-lass
II - External Movement
to C3
pemed 1 Year
~2
EXHIBIT
~ERVED
10· \d\
SCCR-10-127
IN THE ARKANSAS SUPREME COURT
I
v
fllllD
~PR 0 6 20\'2.
esll£ w. S1E£tl
... tl£tlK
I
, ..
..
JOE LOUIS KELLEY,
Appellant
;'-')
v.
STATE OF ARKANSAS,
Appellee
APPELLANT'S RESPONSE TO PETITION FOR REHEARING
TO THE HONORABLE SUPREME COURT OF ARKANSAS:
Appellant, through his attorney of record, Mark F. Hampton, responds to the
Appellee's petition for rehearing challenging the Court's decision entered March
12, 2012.
THE PETITION FOR REHEARING SHOULD BE
DISMISSED BECAUSE IT REFERS TO FACTUAL MATTERS
OUTSIDE THE SCOPE OF THE RECORD ON APPEAL.
I.
1.
The rehearing petition is based on facts that the Attorney General failed to
develop at the circuit court and which are not reflected in the record on appeal.
The State concedes that it erred in arguing in its brief that "Appellant served his
time in the ADC on the forgery alone, was then paroled to the BOP, and is not
pending his return to the ADC to serve his sentence on the terroristic-act
~
EXHIBIT
if-1
~
0..
conviction." (Rhrg. Pet. at 3, citing brief, at 2, n. 3). Based on this, the State now
argues a new and totally different theory regarding Appellant's incarceration in
ADC, citing LeClere v. State, 70 Ark. App. 235, 16 S.W.3d 276 (2000).
2.
The extraordinary action ordered in LeClere, however, was based on a
misrepresentation made by defense counsel in arguing that the record was
complete because no hearing on the speedy trial motion was held in the trial court.
There, the State was able to show that a hearing had been conducted on the motion,
warranting rehearing because the court initially reversed the trial court without
considering the evidence adduced at the hearing which had been held.
3.
LaC/ere actually addressed counsel's referral to the Committee on
Professional Conduct based on his misrepresentation that no hearing had been
conducted on the motion and, thus, there was no deficiency in the abstract filed
with the appellate brief. 70 Ark. App. at 236, 16 S.W.3d at 277. The decision on
rehearing was not published. LaC/ere v. State, CACR99-294, 2000 WL 562561.
4.
No comparable facts support Appellee's rehearing petition here. Unlike
LaC/ere, the State seeks extraordinary action by this Court in arguing--outside the
record on appeal-that its own error warrants rehearing by the Court.
5.
Appellant objects to the State's tactic in circumventing normal appellate
practice requiring the parties to produce the necessary record on appeal and
2
provide an accurate abstract affording the Court a complete opportunity to review
the arguments on their merits in light of support from the record developed at trial.
A.
The State bears sole responsibility for any claimed defect in the
record on appeal in this case.
6.
The trial court record reflects that the Assistant Attorney General now
petitioning for rehearing in fact represented Appellees in the trial court in which
Appellant's prose petition was filed. Moreover, counsel obtained an extension of
time for filing the State's response based on the representation: "Undersigned
counsel is currently awaiting information that is essential to the preparation of this
response.
The additional time is needed in order to assure that adequate
consideration will be given to all issues in this petition." (R/45).
7.
Although counsel then filed a response to the pro se petition following the
extension, (R/47), the claim made here that Appellant never served any of his stateimposed sentences in ADC was not raised. The response focused almost entirely
on failure to show that the sentences imposed by Pulaski County Circuit Courts
were facially invalid. (R/48-53).
8.
Moreover, counsel did not contest the validity of any of the exhibits offered
by Appellant in support of his pro se petition. In effect, the Attorney General
conceded that Appellant' supporting exhibits were correct, (R/48-49), including all
which referred to the events relating to his service of the forgery sentence in ADC,
followed by parole to BOP to serve his federal sentence and anticipated return to
3
ADC to serve the five-year sentence for terroristic act. Counsel now seeks to
repudiate the record in favor of the hearsay referenced in the petition.
9.
Here, the Attorney General now claims special dispensation that would be
denied to other appellate litigants-the option of claiming its own error in the trial
court and on appeal to advance a new claim in its rehearing petition, to rebrief the
case contrary to Cravey v. State, 1991 WL 223920, * 1 (Ark. 1991).
B.
The Attorney General failed to exercise due diligence in asserting
error in the record undermining the credibility of the arguments before the
Court.
10.
Supreme Court Rule 2-3(g) requires the movant to reference the "specific
errors of law or fact which the opinion is thought to contain." It does not authorize
claims based on purported factual errors outside the record on appeal. Moreover,
counsel never moved correct any part of the record relied upon by Appellant in the
trial court or on appeal in support of his pro se motion for relief.
11.
Further, this case has been pending for an extended period of time,
Appellant's brief being filed on May 27, 2010; Appellee's brief filed on August
10, 201 0; and the reply brief filed on September 10, 2010. The decision was
issued March 1, 2012. Yet, Appellee's counsel never sought to correct the record
it now claims to be incorrect until the Court ruled for the Appellant. The State was
on notice of the nature of the argument that should have warranted review of the
proceedings in the court below if there was any basis for concluding that the
4
evidentiary support for Appellant's claims was in error, once it was served with
Appellant's brief on appeal.
C.
12.
The Attorney General's petition abuses appellate process.
"A rehearing does not encompass a new set of facts, new briefs, and new
arguments." Pannell v. State, 320 Ark. 390,391, 897 S.W.2d 552 (1995). Counsel
now seeks to advance new facts and new argument in the rehearing petition, an
unauthorized departure from the rules of appellate practice, which requires
preservation of claims in the trial court, Hooker v. Farm Plan Corp., 331 Ark. 418,
419, 962 S.W.2d 352, 354 (Ark. 1998), and restricts review "to the record as
abstracted in the briefs." Dixon v. State, 314 Ark. 378, 378-79, 863 S.W.2d 282,
282 (Ark. 2003) (deficient abstract of proceedings precludes appellate review.).
13.
A petition for rehearing "may not substitute for an adequate record in the
appellant's brief." Hagen v. State, Not Reported in S.W.2d, 1995 WL 311468, *1
(Ark. 1995). Counsel now seeks to argue outside the record on appeal without
having developed the record in the trial court or moving to expand the record
during the pendency of this appeal and its attempt to use the petition for rehearing
to expand the record in support of a new argument is contrary to the Rules and
common appellate practice in this Court.
D.
The Attorney General's reliance on unsubstantiated hearsay in
support of its argument for rehearing is improper and would, ifpermitted,
open the door to other parties to disregard the record on appeal and relying
on unsworn testimony relating hearsay in order to set aside a decision
5
rendered on the record by the Court.
14.
Here, the Attorney General does not point to any mistake of law or fact
made by the Court in deciding this case, as required by Rule 2-3(g), but instead,
relies on the unsworn statement of the unidentified party to whom the Attorney
General spoke following issuance of the Court's opinion, the "records supervisor."
There is no supporting documentation or affidavit substantiating the information or
showing it to be correct. In fact, reliability cannot be presumed on this point
precisely because the issue on appeal was based on a computational error already
admitted by ADC included in the record on appeal. (R/35; see also R/27 and 32,
prior correspondence), resulting in the Court's decision ordering relief.
15.
The approach taken the petition for rehearing not only not conflicts with
controlling rules of appellate practice, but would serve to permit other litigants to
contest appellate decisions by offering unsworn, undocumented conversations
relating hearsay as a basis for petitioning for rehearing, an extraordinary departure
from the practice of basing appellate decisions on the record preserved in the trial
court. This would convert the appellate rehearing process into a virtual evidentiary
free-for-all in which regularity of appellate records could be discarded in order to
challenge unfavorable determinations, an approach that should be rejected by the
Court in order to preserve orderly appellate process.
6
II.
THE PETITION SHOULD BE DENIED BECAUSE THE
COURT'S DECISION IS SUPPORTED BY THE RECORD ON
APPEAL.
16.
Even assuming, arguendo, that the new evidence offered by the Attorney
General in support of its petition for rehearing, (Rhrg. Pet. at 4-5,
~
5), obtained
from an unidentified "records supervisor"-revelation of unsworn information
disclosed during an apparent unrecorded telephone conversation-may be deemed
properly before the Court, it fails to support the heart of Appellee's claim that
"Appellant has served no time on his State sentences." (Rhrg. Pet. at 5, ~ 5).
17.
The record unequivocally shows that Appellant was transferred from the
Pulaski County Detention Facility to ADC following his conviction on the forgery
charge in Division 2 of Pulaski County Circuit Court. (ADD. 24/R. 23). ADC
then notified Appellant of his discharge date. (ADD. 5/R. 24).
18.
Appellee Maroney later advised Appellant that an ADC computation error
required that the time imposed on his federal sentence was to run consecutive to
the time imposed on the state forgery sentence, and that the sentence on the
terroristic act charge could not then be run consecutively to the federal sentence.
(ADD. 36/R. 35). Maroney then advised Kelley that the Attorney General had
advised her that the sentence on the terroristic act conviction must be served in
ADC following completion of the federal sentence.
(ADD. 37/R. 36).
The
Attorney General's opinion was incorrect because the circuit court could not
7
legally impose a sentence to run consecutive to a sentence not yet imposed by
another court. Kelley v. State, 2012 Ark. 86, *3, 2012 WL 664273, **3. Movant
apparently concedes that this Court's holding is correct. (Rhrg. Pet. at 5,
~
6,
"not[ing]" the Court's conclusion).
19.
Movant argues, however, that Appellant never served any time on his state
sentences and that he must now serve the five-year sentence on the terroristic act
conviction following his release from federal custody: "The State is now aware
that Appellant has served no time in the ADC for his state convictions .... " (Rhrg.
Pet. at 3,
~
2).
Counsel does not claim, however, that Appellant was never
incarcerated in ADC prior to being released to federal custody to serve his federal
sentence and fails to offer any explanation for its implicit argument that although
he was confined in ADC, he was not serving time on a state sentence while
incarcerated. If so, his confinement in ADC would be wholly illegal since it was
not based on a state-imposed sentence requiring his imprisonment.
20.
Appellant Kelley assumes that Appellee must now be claiming that he was
actually serving his federal sentence while in initial custody of ADC following his
conviction on the forgery charge, but that claim is neither supported by any factual
record-in contrast, he was received at ADC on the forgery charge, as the record
clearly shows, even in the correspondence of Appellee Maroney--or any statement
of law, whether statutory or caselaw. However, the Court has correctly noted that
8
-·
the issue of whether federal authorities credited Appellant's initial confinement at
ADC on the forgery charge toward his federal sentence is "irrelevant" to the issue
presented in this case. Proper calculation of the federal sentence is within the
jurisdiction of the federal court and BOP, as the Court's notation implicitly
confirms. Kelley, 2012 Ark. 86, *4, n. 2; 2012 WL 664273, **3, n. 2.
32.
Appellant Kelley discharged his sentence on the forgery charge; was
released to the custody of federal authorities, who then released him upon
completion of his sentence obligation in the federal system; and has now been
returned to custody of ADC. Because ADC erred in failing to note the terroristic
act conviction upon initially receiving Appellant, the Court has properly concluded
that he can now only be required to serve the remaining time on his five-year
mandatory sentence for terroristic act after crediting him for time previously served
on the forgery charge ordered to be served concurrently by Division 2.
33.
The Attorney General's argument is wholly unsupported factually and
legally.
Moreover, it rests on the constitutionally impermissible premise that
Appellant Kelley could be imprisoned in ADC based on a sentence imposed by the
state court, yet be retroactively denied any credit for that time served as a result of
its own records-keeping error. This argument, based on ADC's new, erroneous
interpretation, not only must fail as a matter of statutory authority and due process
protections, but reflects what appear to be substantial inaccuracies in ADC record-
9
keeping, errors that should not be permitted to impose unauthorized confmement
on state court defendants.
Based on the foregoing argument and supporting record entries, Appellant
moves the Court deny the Attorney General's petition for rehearing in this cause ..
Respectfully submitted this 6th day of April, 20 12 .
.,HAMPT N
ATTO
Y AT r.:AW
ARKANSAS BAR NO. 85066
1122 WEST CAPITOL
LITTLE ROCK, AR. 72201
(501) 376-6277
(501) 376-6279 (FAX)
MarkFHampton@aol.com
and
J. THOMAS SULLIVAN
ATTORNEY AT LAW
ARKANSAS BAR NO. 2006019
P.O. BOX 17007
LITTLE ROCK, AR. 72222
(501) 324-9940
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the foregoing Response to the
Appellee's Petition for Rehearing on counsel for the St e, t Attorney General of
Arkansas, by leaving same with the Clerk of the
on Apr· 6, 2012.
10
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