Page:Kelley v. Gordon.pdf/3

 No. 95-149. Pursuant to Arkansas Code Annotated sections 116-112-108(c)(2) & -109(a), the director attached copies of the judgment and commitment order and Gordon's institutional file. The judgment and commitment order reflects that the date the murder was committed was January 28, 1995, and that Gordon’s date of birth is August 18, 1976.

At the hearing before the circuit court, at which Gordon was present, the parties presented evidence on the issue of Gordon’s true date of birth. As the circuit court's finding that Gordon was born on August 18, 1977—not 1976, as reflected on the judgment and commitment order—is not challenged on appeal, it is not necessary to address the details of that evidence. The circuit court also heard argument regarding whether Miller should be applied retroactively to afford Gordon relief. At the conclusion of the hearing, the court ruled from the bench that Gordon was entitled to relief, and a written order was subsequently entered as follows:


 * 1) That Ulonzo Gordon was born on August 18, 1977. The murder for which he was convicted occurred on January 28, 1995. Thus, Gordon was under 18 years of age at the time of the murder.
 * 2) That habeas corpus is the proper procedure to bring this claim.
 * 3) That Miller v. Alabama/Jackson v. Hobbs, 132 S.Ct 2455 (2012), is retroactive.
 * 4) The Court finds that the clear intent of the United States Supreme Court in Miller/Jackson, as demonstrated by its reliance on fully retroactive cases; that the distinction between Miller’s situation on direct appeal and Jackson's post conviction situation is of such jurisprudential significance under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), and other cases explaining the Teague rule that Jackson's case would have been decided differently if Miller/Jackson was not retroactive; that Miller/Jackson is retroactive as a matter of state constitutional law as well; and considering that Jackson is an Arkansas case and Jackson has obtained relief, it would also violate Gordon's federal and state constitutional rights of due process and equal protection to treat Gordon differently than Jackson.