Opposition Brief — Terrance Proctor, Petitioner v. Wendy Kelley, Director, Arkansas Department of Correction

No. 18-8951

_____________________________

IN THE SUPREME COURT OF THE UNITED STATES

______________________________

TERRANCE PROCTOR,

Petitioner,

v.

WENDY KELLEY,

Respondent.

______________________________

On Petition for Writ of Certiorari to the

Supreme Court of Arkansas

_______________________________

BRIEF IN OPPOSITION FOR RESPONDENT

WENDY KELLEY

_______________________________

LESLIE RUTLEDGE

Arkansas Attorney General

R. Raupp

NICHOLAS J. BRONNI

Arkansas Solicitor General

VINCENT M. WAGNER

Deputy Solicitor General

VADA BERGER

Senior Assistant Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

323 Center Street, Suite 200t

Little Rock, Arkansas 72201

(501) 682-1052

vada.berger@arkansasag.gov

QUESTIONS PRESENTED

Whether the Eighth Amendment prohibits imposing an aggregate sentence

that would render a juvenile nonhomicide offender ineligible for parole until the

offender reaches advanced age, even if no single sentence has that effect?

Is petitioner Terrance Proctor’s aggregate sentence for nonhomicide offenses

he committed as a juvenile grossly disproportionate in violation of the Eighth

Amendment given the particular circumstances of his own case?

i

RELATED PROCEEDINGS

Arkansas State Courts:

Proctor v. State, No. CR 86-133, Arkansas Supreme Court. Judgment entered

Mar. 16, 1987.

Proctor v. Hobbs, No. CV-14-768, Arkansas Supreme Court. Judgment

entered Feb. 12, 2015.

Proctor v. Kelley, No. 40CV-19-66, Lincoln County Circuit Court. Pending.

Federal Courts:

Proctor v. Lockhart, No. 5:87-cv-426-HW, U.S. District Court for the Eastern

District of Arkansas. Judgment entered Sept. 26, 1990.

Proctor v. Lockhart, No. 90-2883EA, U.S. Court of Appeals for the Eighth

Circuit. Judgment entered Dec. 31, 1990.

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ................................................................................ i

RELATED PROCEEDINGS............................................................................... ii

TABLE OF CONTENTS .................................................................................... iii

TABLE OF AUTHORITIES ................................................................................v

OPINION BELOW...............................................................................................1

JURISDICTION ..................................................................................................1

CONSTITUTIONAL PROVISION INVOLVED .................................................1

STATEMENT OF THE CASE .............................................................................1

A. Proctor’s Extensive Criminal History ......................................................1

B. Reduction of Proctor’s Prior Life Sentence...............................................3

C. Proctor’s Latest Challenges to His Sentences ..........................................4

REASONS FOR DENYING THE WRIT .............................................................5

I.

The Arkansas Supreme Court’s decision on Proctor’s disproportionality

claim rests on an adequate and independent state-law ground .............6

II. The decision below is correct ...................................................................7

III. There is no significant split in authority concerning the

constitutionality of lengthy cumulative sentences for multiple

violent criminal episodes .......................................................................10

IV. Even if the questions presented warranted review, this case would

be a poor vehicle for addressing them ...................................................11

CONCLUSION...................................................................................................15

iii

SUPPLEMENTAL APPENDIX

Informations, State v. Proctor, Pulaski County Circuit Court

Case No. CR 82-1262 and Nos. CR 83-69 through 83-76 ...... Supp. App. 1

Guilty-Plea Colloquies, State v. Proctor, Pulaski County Circuit

Court Case No. CR 82-1262 and Nos. CR 83-69 through

83-76 ...................................................................................... Supp. App. 10

Information and Judgment and Commitment Order in

State v. Proctor, Jefferson County Circuit Court Case

No. CR 86-423 ....................................................................... Supp. App. 73

Proctor’s Inmate Record Summary,

dated August 13, 2019 (redacted) ........................................ Supp. App. 75

iv

TABLE OF AUTHORITIES

CASES

PAGE

Budder v. Addison, 851 F.3d 1047 (10th Cir.), cert. denied,

138 S. Ct. 475 (2017) .................................................................................10, 14

Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012), cert. denied,

569 U.S. 947 (2013) .........................................................................................10

Carter v. State, 363 A.3d 695 (Md. 2018) ....................................................11, 14

Coleman v. Thompson, 501 U.S. 722 (1991) .......................................................6

Commonwealth v. Foust, 180 A.3d 416 (Pa. Super. 2018) .................................8

CRST Van Expedited, Inc. v. E.E.O.C., 136 S. Ct. 1642 (2016) .......................13

Early v. Hobbs, 2015 Ark. 313, 467 S.W.3d 150 (per curiam)..........................12

Ewing v. California, 538 U.S. 11 (2003) .............................................................9

Fisher v. State, 364 Ark. 216, 217 S.W.3d 117 (2005) ........................................6

Foster v. Chatman, 136 S. Ct. 1737 (2016) .........................................................6

Graham v. Florida, 560 U.S. 48 (2010) ..................................................... passim

Harris v. Reed, 489 U.S. 255 (1989) ....................................................................6

Henry v. State, 175 So.3d 675 (Fla. 2015), cert. denied,

136 S. Ct. 1455 (2016) .....................................................................................10

Ira v. Janecka, 419 P.3d 161 (N.M. 2018) .........................................................11

Lucero v. People, 394 P.3d 1128 (Colo. 2017), cert. denied,

138 S. Ct. 641 (2018). ..................................................................................8, 10

Miller v. Alabama, 567 U.S. 460 (2012) ..............................................................9

Moore v. Biter, 725 F.3d 1184 (9th Cir. 2013)...................................................11

People v. Caballero, 282 P.3d 291 (Cal. 2012) ..................................................11

People v. Rainer, 394 P.3d 1141 (Colo. 2017), cert. denied,

v

138 S. Ct. 641 (2018) .......................................................................................10

People v. Reyes, 63 N.E.3d 884 (Ill. 2016) (per curiam) ....................................14

Proctor v. Hobbs, 2015 Ark. 42 ................................................................ 2, 3, 7, 8

Proctor v. Kelley, 562 S.W.3d 837 (Ark. 2018) ....................................................1

Roper v. Simmons, 543 U.S. 551 (2005) ..............................................................9

Sochor v. Florida, 504 U.S. 527 (1992) ...............................................................7

State v. Brown, 118 S.o3d 332 (La. 2013) .........................................................11

State v. Moore, 776 N.E.3d 1127 (Ohio 2016), cert. denied,

138 S. Ct. 62 (2017) .........................................................................................11

State v. Slocumb, 827 S.E.2d 148 (S.C. 2019)...............................................8, 11

State v. Zuber, 152 A.3d 197 (N.J.), cert. denied,

138 S. Ct. 152 (2017) .......................................................................................11

United States v. Rodriguez, 553 U.S. 377 (2008) ................................................9

Vasquez v. Commonwealth, 781 S.E.3d 920 (Va.), cert. denied,

137 S. Ct. 568 (2016) ...................................................................................8, 10

Willbanks v. Dep’t of Corr., 522 S.W.3d 238 (Mo.), cert. denied,

138 S. Ct. 304 (2017) ...................................................................................8, 10

Willis v. Hobbs, 2011 Ark. 312 (per curiam) .....................................................12

STATUTES AND RULES

28 U.S.C. § 1257(a) ..........................................................................................1, 6

Arkansas Code Annotated § 16-93-604(b)(2) (Repl. 2016) .................................4

Arkansas Code Annotated § 16-93-604(b)(3) (Repl. 2016) .................................4

Arkansas Code Annotated § 16-93-621(a)(1) (Supp. 2017) ..............................15

Arkansas Code Annotated § 41-901(1)(a) (Cum. Supp. 1981) .......................2, 7

Arkansas Code Annotated § 41-901(1)(b) (Cum. Supp. 1985) ...........................3

vi

Arkansas Code Annotated § 41-901(1)(c) (Cum. Supp. 1981) ........................2, 8

Arkansas Code Annotated § 41-901(1)(e) (Cum. Supp. 1985) ............................3

Arkansas Code Annotated § 41-903(1) (Repl. 1977) .......................................3, 8

Arkansas Code Annotated § 41-903(2) (Repl. 1977) ...........................................3

Arkansas Code Annotated § 41-2102(2) (Cum. Supp. 1981) ..............................2

Arkansas Code Annotated § 41-2103(2) (Repl. 1977) .........................................2

Arkansas Code Annotated § 46-120 (Repl. 1977) ...............................................4

MISCELLANEOUS

Ark. Acts 2017, No. 539 .....................................................................................15

Bell v. Mississippi, No. 18-1500 ........................................................................13

Eighth Amendment to the United States Constitution ........................... passim

Fair Sentencing of Minors Act of 2017..............................................................15

vii

OPINION BELOW

The opinion of the Arkansas Supreme Court is reported at 562 S.W.3d 837.

It also is reprinted in Petitioner’s Appendix A (Pet. App. A).

JURISDICTION

The judgment of the Arkansas Supreme Court affirming the denial of

petitioner Terrance Proctor’s state petition for a writ of habeas corpus was issued on

December 20, 2018. The petition for a writ of certiorari was filed on March 13,

2019. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a). The

petition was timely filed, but this Court lacks jurisdiction to review at least one of

the questions presented because the Arkansas Supreme Court’s resolution of that

issue rested on an adequate and independent state-law ground.

CONSTITUTIONAL PROVISION INVOLVED

The Eighth Amendment to the United States Constitution provides that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.”

STATEMENT OF THE CASE

Petitioner Terrance Proctor is a hardened criminal with a long history of

violence. He asks this Court to grant his petition and, ultimately, grant him a

volume discount on his fourteen violent felony convictions.

A. Proctor’s Extensive Criminal History

When he was 17 years old, on July 22, 1982, Proctor committed the first of

many violent robberies. Supplemental Appendix, at 1 (Supp. App.); id., at 12-13;

Record, at 58. While out on bond for that offense, Proctor then embarked on an 18-

day crime spree from October 26, 1982, to November 12, 1982, during which he

committed ten additional robberies. See, e.g., Proctor v. Hobbs, 2015 Ark. 42, at 1;

see also Supp. App., at 2-9 (charging documents); id., at 65-66. Ultimately—in nine

separate cases—Proctor pleaded guilty to committing 11 felonies: ten aggravated

robberies with a firearm and one robbery. See Proctor, 2015 Ark. 42, at 1; Record, at

30-37; see generally Supp. App., at 10-72.

For one of the aggravated robberies—during which he fired three shots at a

car chasing him from the scene—Proctor initially was sentenced to life

imprisonment without the possibility of parole. See Pet. App. A., at 1; Supp. App.,

at 47-52, 70-71.

He was sentenced to 20 years’ imprisonment for each of the

remaining offenses, with those sentences imposed consecutively to each other and to

his life sentence. See Proctor, 2015 Ark. 42, at 1-2; Record, at 30-37. The 20-year

sentence for robbery and the life sentence for one of the aggravated robberies were

the maximum. See Ark. Stat. Ann. § 41-2103(2) (Repl. 1977) (classifying robbery as

a Class B felony); Ark. Stat. Ann. § 41-2102(2) (Cum. Supp. 1981) (classifying

aggravated robbery as Class Y felony); Ark. Stat. Ann. § 41-901(1)(a) & (c) (Cum.

Supp. 1981) (setting sentencing range for Class B felony at five to 20 years and for

Class Y felony at 10 to 40 years or life). The remaining nine 20-year sentences for

aggravated robbery were less than half the maximum then allowed under Arkansas

law. See Ark. Stat. Ann. § 41-901(1)(a).

As an adult and while incarcerated for those violent offenses, in August 1986,

Proctor committed an attempted capital murder and two second-degree batteries.

2

Supp. App., at 73-74.

Despite his 11 prior felony convictions, Proctor was not

charged as a habitual offender. Id., at 73. After conviction, Proctor received close to

the minimum cumulative term of imprisonment available: 10 years’ imprisonment

for the attempted capital murder and five years’ imprisonment for each of the

batteries, to be served concurrently with each other and the sentences he already

was serving. Id., at 74 (noting classification of crimes of conviction as Class A and

D felonies); see also Ark. Stat. Ann. § 41-901(1)(b) & (e) (Cum. Supp. 1985)

(authorizing term of imprisonment of six to 30 years for Class A felony and not

exceeding six years for Class D felony); Ark. Stat. Ann. § 41-903 (1) & (2) (Repl.

1977) (authorizing consecutive imposition of sentences).

B. Reduction of Proctor’s Prior Life Sentence

In 2013, Proctor filed a state habeas-corpus petition, alleging that his lifewithout-parole sentence for the violent aggravated robbery he committed while a

juvenile was illegal under Graham v. Florida, 560 U.S. 48 (2010). Proctor, 2015

Ark. 42, at 2.

The state trial court granted the petition and reduced Proctor’s

sentence to 40 years’ imprisonment, the maximum term-of-years sentence available

at the time he committed the crime. Id., 2015 Ark. 42, at 2 & n.1.

Proctor challenged his 40-year sentence on appeal, but the Arkansas

Supreme Court affirmed. Id., 2015 Ark. 42, at 1, 3. That court noted that, while

Proctor also complained about his cumulative sentence, his habeas petition did not

allege that his cumulative sentence ran afoul of Graham. Proctor, 2015 Ark. 42, at

3 & n.2.

3

The reduction of Proctor’s life sentence to 40 years’ imprisonment means that

each of his juvenile sentences carries parole eligibility. He is parole eligible for his

aggravated-robbery convictions after serving half his sentences, and he will be

eligible for parole in connection with his robbery sentence after he serves one-third

of that sentence. Ark. Code Ann. § 16-93-604(b)(2) & (3) (Repl. 2016) (providing for

parole eligibility for first offender non-Class Y felonies and Class Y felonies

committed between April 1, 1977, and April 1, 1983).

Proctor also can accrue

meritorious good time. See Ark. Stat. Ann. § 46-120 (Repl. 1977).

C. Proctor’s Latest Challenges to His Sentences

In August, 2017, Proctor filed another state habeas-corpus petition, arguing

that the 240-year cumulative sentence that he is now serving also violated Graham.

Record, at 3-29. He claimed that because he will not be parole-eligible until after he

is 80 years old, his sentences amount to a de facto life sentence. Id., at 4-13. He

also alleged that his cumulative sentence for multiple violent felonies is grossly

disproportionate to his crimes. Id., at 13-15. The state trial court rejected Proctor’s

claim that his aggregate sentence is illegal under Graham and dismissed his

petition. Record, at 91-93. It did not address his other claim.

The Arkansas Supreme Court unanimously affirmed. It held that Proctor’s

cumulative sentence did not violate Graham because he was not sentenced to life

without parole. See Pet. App. A, at 4-8.

To the contrary, “the fact that [Proctor]

has a parole eligibility date is undisputed.”

Id., at 6.

Indeed, the Arkansas

Supreme Court explained that, “Proctor’s 240-year sentence is the result of multiple

4

sentences, any one of which would not amount to a life sentence or, presumably,

even a de facto life sentence.”

Id., at 6 (emphasis added; footnote omitted).

Moreover, as that court explained, Proctor’s suggestion that otherwise lawful

sentences might amount to an unlawful de facto life sentences based on “an

offender’s race, gender, and health conditions that may have arisen after

sentencing” was unworkable. Id., at 6 n.3. Thus, the Arkansas Supreme Court

rejected Proctor’s Graham claim. Pet. App. A, at 7.

Further, the Arkansas Supreme Court held that, under state law, Proctor’s

claim that his sentence was grossly disproportionate was not preserved properly.

Id., at 8. While Proctor presented that claim to the trial court, as the Arkansas

Supreme Court explained, “it is clear that he did not obtain a ruling on that issue.”

Id. Under long-established Arkansas law, as that court explained, “Proctor’s failure

to obtain a ruling” on that issue “preclude[d] . . . review[]” of that claim. Id.

Proctor’s petition followed.

REASONS FOR DENYING THE WRIT

Although written as proposing five separate questions, Proctor’s petition

really only asks whether his aggregate sentence runs afoul of Graham and whether

that sentence for his commission of multiple felonies is grossly disproportionate.

Neither question warrants review.

Rather, this Court should deny the petition for at least four reasons. First,

this Court lacks jurisdiction to consider Proctor’s gross-disproportionality claim

because the denial of that claim rests on an adequate and independent state-law

5

ground. Second, the Arkansas Supreme Court’s decision is correct. Third, there is

no significant split of authority concerning the issues on which Proctor seeks

review. And fourth, even if the questions presented might otherwise warrant

review, this case is a particularly poor vehicle to review them given unresolved

factual questions and recent Arkansas legislation.

I.

The

Arkansas

Supreme

Court’s

decision

on

Proctor’s

disproportionality claim rests on an adequate and independent

state-law ground.

Proctor asks this Court to review whether his sentences in the aggregate are

grossly disproportionate. This Court lacks jurisdiction to review that claim because

the Arkansas Supreme Court’s refusal to address Proctor’s disproportionality claim

rests on an adequate and independent state-law ground.

This Court lacks jurisdiction under 28 U.S.C. § 1257(a) to review an issue of

federal law if the state court’s decision rests on a state-law ground that is

independent of the merits of the federal question and adequate to support the

judgment. E.g., Foster v. Chatman, 136 S. Ct. 1737, 1745 (2016) (reciting general

rule); see also, e.g., Coleman v. Thompson, 501 U.S. 722, 729 (1991) (rule applies

“whether state law ground is substantive or procedural[]”); Harris v. Reed, 489 U.S.

255, 260-61 (1989) (rule applies to state procedural rules). Here, following wellestablished state law, the Arkansas Supreme Court refused to address Proctor’s

claim of gross disproportionality because Proctor had failed to obtain a ruling on

that claim below. Pet. App. A., at 8; e.g., Fisher v. State, 364 Ark. 216, 223, 217

S.W.3d 117, 123 (2005).

6

Proctor does not assert that the Arkansas Supreme Court’s reliance on its

longstanding procedural-bar precedent was not adequate or independent. Indeed,

in his minimal attention to this claim, Proctor simply declines to acknowledge that

the Arkansas Supreme Court refused to review his disproportionality claim. See

Pet. at 28-29. But that decision clearly precludes this Court’s review. See, e.g.,

Sochor v. Florida, 504 U.S. 527, 533-34 (1992). Therefore, this Court should deny

the petition.

II.

The decision below is correct.

This Court’s review is not warranted because the Arkansas Supreme Court

correctly rejected Proctor’s claim. The Eighth Amendment does not categorically

bar States from imposing multiple sentences when a juvenile has committed

multiple violent crimes in numerous separate criminal episodes. That is true even

if those sentences—in the aggregate—mean that a violent juvenile offender will not

be parole eligible for decades.

As noted, Proctor was convicted of ten aggravated robberies and one robbery

in nine separate criminal episodes in July, October, and November of 1982. He is

serving one 40-year sentence and ten 20-year sentences. The 20-year sentences for

nine of the aggravated-robbery convictions are half the possible ten-to-40 term-ofyears range now permissible for juveniles under Arkansas law. See Proctor, 2015

Ark. 42, at 2 & n.1. While Proctor’s 20-year sentence for robbery and his 40-year

sentence for one aggravated robbery are—post Graham—admittedly the maximum

juvenile penalty allowed under Arkansas law, see Ark. Stat. Ann. § 41-901(1)(a) &

7

(c); Proctor, 2015 Ark. 42, at 2, his cumulative sentence of 240 years is well below

the maximum cumulative sentence of 420 years that he could have received. See

Ark. Stat. Ann. § 41-903(1) (authorizing consecutive imposition of sentences).

None of Proctor’s individual sentences is unconstitutional. After all, Graham

bars only a life sentence without parole for a single nonhomicide offense committed

by a juvenile. Id., 560 U.S. at 63; see also, e.g., Willbanks v. Dep’t of Corr., 522

S.W.3d 238, 242 (Mo.), cert. denied, 138 S. Ct. 304 (2017); Vasquez v.

Commonwealth, 781 S.E.3d 920, 926 (Va.), cert. denied, 137 S. Ct. 568 (2016). It

would defy logic to suggest—as Proctor does—that undisputedly legal individual

sentences suddenly become unconstitutional simply because a juvenile commits

multiple crimes in several different criminal episodes. Indeed, that approach would

shockingly afford offenders a “volume discount[,]” Commonwealth v. Foust, 180 A.3d

416, 434 (Pa. Super. 2018) (citation and quotations omitted), and be entirely

inconsistent with the “concept of proportionality” recognized in Graham, 560 U.S. at

59; see also, e.g., State v. Slocumb, 827 S.E.2d 148, 155 (S.C. 2019) (aggregate

sentence lengthy because Slocumb “committed so many crimes, not because a single

sentence is disproportionately lengthy[]”) (footnote omitted); Lucero v. People, 394

P.3d 1128, 1133-34 (Colo. 2017) (refusing to assess multiple sentences in the

aggregate because it would allow a juvenile defendant to “generate an Eighth

Amendment disproportionality claim simply because that defendant had engaged in

repeated criminality activity[]”) (citation and quotations omitted), cert. denied, 138

S. Ct. 641 (2018).

8

Granted, this Court has treated juveniles differently in some respects under

the Eighth Amendment. Those decisions have concerned juveniles being subjected

to the harshest punishment available for a singular offense. See, e.g., Miller v.

Alabama, 567 U.S. 460, 479 (2012) (invalidating mandatory life-without-parole for

homicide); Graham, 560 U.S. at 82 (invalidating life without parole for

nonhomicides); Roper v. Simmons, 543 U.S. 551, 578 (2005) (invalidating death

penalty for homicide). Even Graham itself, however, does not “guarantee eventual

freedom to a juvenile offender convicted of a nonhomicide crime.” Id., 560 U.S. at 75

(emphasis added).

In light of that, this Court has not suggested that juveniles who repeatedly

offend over time cannot be subject to multiple, undisputedly legal sentences. No

one could possibly dispute that offenders who commit multiple crimes are more

culpable than those who commit only one offense.

See, e.g., United States v.

Rodriguez, 553 U.S. 377, 385 (2008). Nor could anyone dispute that a state has a

“legitimate penological justification[,]” Graham, 560 U.S. at 71, for punishing

juveniles who commit numerous violent crimes in multiple criminal episodes more

harshly than those who commit a single crime or even multiple crimes in a single

episode. See, e.g., Ewing v. California, 538 U.S. 11, 25-26 (2003) (plurality opinion)

(Eighth Amendment did not preclude state from adopting penological theory that

offender “who [had] already been convicted of at least one serious or violent crime[]”

was subject to harsher punishment). Indeed, a contrary conclusion would turn this

Court’s proportionality analysis on its head and mean, as Proctor bizarrely claims,

9

that an offender who commits numerous violent crimes in multiple episodes is “less

morally culpable th[a]n one who had the maturity to stop at a single offense[,]”

Petition at 10. Because that cannot possibly be the rule, this Court should deny

review.

III. There is no significant split in authority concerning the

constitutionality of lengthy cumulative sentences for multiple

violent criminal episodes.

In the wake of Graham, this Court has been presented with several petitions

involving challenges to lengthy aggregate juvenile sentences for nonhomicide

offenses in a single criminal episode. It repeatedly has denied review. See, e.g.,

People v. Rainer, 394 P.3d 1141, 1143 (Colo. 2017), cert. denied, 138 S. Ct. 641

(2018); Lucero, 394 P.3d at 1130, cert. denied, 138 S. Ct. 641 (2018); Willbanks, 522

S.W.3d at 240, cert. denied, 138 S. Ct. 304 (2017); Vasquez, 781 S.E.3d at 922-23,

cert. denied, 137 S. Ct. 568 (2016); Henry v. State, 175 So.3d 675, 676 (Fla. 2015),

cert. denied, 136 S. Ct. 1455 (2016); see also, e.g., Budder v. Addison, 851 F.3d 1047,

1049-50 (10th Cir.), cert. denied, 138 S. Ct. 475 (2017); Bunch v. Smith, 685 F.3d

546, 547-48 (6th Cir. 2012), cert. denied, 569 U.S. 947 (2013). Proctor does not

attempt to explain how the legal landscape has changed appreciably since those

denials such that review of the issue he presents to this Court suddenly is

warranted.

But more importantly, Proctor’s case is distinguishable from those cases

because he did not receive a lengthy cumulative sentence in connection with a

single crime spree. Instead, Proctor received multiple sentences in connection with

10

nine separate criminal episodes. And, to the extent there is a significant division in

authority, it is over whether Graham’s analysis applies to aggregate term-of-years

sentences imposed as a result of a single crime spree, as the cases recounted above

and several others for which certiorari has not been sought make clear. E.g., Carter

v. State, 192 A.3d 695, 734-35 (Md. 2018); State v. Brown, 118 S.o3d 332, 333-34

(La. 2013); People v. Caballero, 282 P.3d 291, 293 (Cal. 2012).

Indeed, Proctor fails to point to any split in authority over lengthy

cumulative sentences imposed on juvenile nonhomicide offenders as a result of

separate criminal episodes. Rather, his argument rests entirely on State v. Moore,

776 N.E.3d 1127 (Ohio 2016), cert. denied, 138 S. Ct. 62 (2017). Yet even that

case—in stark contrast to Proctor’s case—only involved two separate criminal

episodes on a single evening. Id., 776 N.E.3d at 1129-30; see also, e.g., Slocumb, 827

S.E.2d at 310; Ira v. Janecka, 419 P.3d 161, 163 (N.M. 2018); State v. Zuber, 152

A.3d 197, 202-03 (N.J.), cert. denied, 138 S. Ct. 152 (2017); Moore v. Biter, 725 F.3d

1184, 1186 (9th Cir. 2013). That, at best, subsidiary and less common split, hardly

warrants review at this point.

IV.

Even if the questions presented warranted review, this case would

be a poor vehicle for addressing them.

This case has a myriad of vehicle problems that warrant denying the petition.

In particular, this is a uniquely poor vehicle for addressing whether the Eighth

Amendment bars consecutive sentences for numerous violent, nonhomicide offenses

committed as a juvenile.

As framed by Proctor, the petition rests on the never-before-tested assertions

11

that he is likely to pass away before his parole-eligibility date and that, as a result,

his sentences amount to a de facto life sentence. See Pet. at 7, 16.1 Because this

case was litigated as a state-court habeas proceeding, there are no factual findings

concerning Proctor’s life expectancy nor is there any record from which this Court

could make such findings. See Pet. App. A., at 1, 3. Instead, consistently with

Arkansas law, the state courts conducted a very “narrow” review of Proctor’s claims

and only considered whether his judgments were valid on their face and whether

the committing court lacked jurisdiction. See id., at 3; see also Willis v. Hobbs, 2011

Ark. 312, at 2, 3 (per curiam).

Indeed, under Arkansas law, state habeas

proceedings generally do not provide a forum for resolving issues requiring any kind

of “factual inquiry[.]” Early v. Hobbs, 2015 Ark. 313, at 3, 467 S.W.3d 150, 152 (per

curiam).

Consistently with those limitations, neither the state trial court nor the

Arkansas Supreme Court made any findings concerning Proctor’s life expectancy or

rehabilitation. Yet, those issues are critical to his claim that he is suffering from an

unconstitutional life sentence.

Cf. e.g., Graham, 560 U.S. at 75 (juvenile

nonhomicide offenders need not be released, but State must provide “some

meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation[]”). Indeed, in contrast to his assertion, he has not “undisputedly

1While

Proctor claims he is not eligible for parole until age 87 (Pet. at 21), his

current parole-eligibility date is April 9, 2051, when he will be 86. Supp. App., at

75. This date, however, is subject to change and could occur earlier depending upon

the accrual or restoration of good time.

12

[been] rehabilitated[.]” Pet. at 9; see also id., at 15. In fact, two years after having

his life sentence reduced to 40 years, in July 2016, he was the subject of a major

disciplinary action for, among other things, making sexual threats, resulting in his

being placed in administrative segregation for 20 days. Supp. App., at 80. And,

although the Arkansas Parole Board previously had recommended him for

clemency, it did not recommend clemency when considering his last two requests in

2015 and 2019. Id., at 114-15. While this Court has at times collected public data

in the sentencing context, see Graham, 560 U.S. at 63-65 (determining for itself the

number of juveniles serving life without parole for nonhomicide offenses in various

jurisdictions), “[i]t is not the Court’s usual practice to adjudicate either legal or

predicate factual questions in the first instance.”

CRST Van Expedited, Inc. v.

E.E.O.C., 136 S. Ct. 1642, 1653 (2016).2

This case also is a poor vehicle to consider whether a lengthy aggregate term

of imprisonment for juvenile nonhomicide offenders violates the Eighth Amendment

because, as noted, Proctor committed numerous violent felonies in multiple separate

criminal episodes.

Even courts sustaining Eighth Amendment claims have

recognized a distinction between juveniles who committed multiple crimes in a

single criminal episode and those, like Proctor, who committed multiple crimes in

numerous criminal episodes. In the latter circumstance, courts have concluded that

2This case differs significantly from Bell v. Mississippi, No. 18-1500, in which the

state trial court apparently did make a life-expectancy finding. See Bell v.

Mississippi, No. 18-1500, Petition for Writ of Certiorari, at 2 (claiming trial court

made finding at sentencing that “Bell’s remaining life expectancy was 40 years[]”).

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it is “less likely that the aggregate sentence is constitutionally disproportionate

even after taking youth and attendant characteristics into account.” Carter, 192

A.3d at 731; cf., e.g., People v. Reyes, 63 N.E.3d 884, 886, 887-88 (Ill. 2016) (per

curiam) (vacating aggregate 97-year sentence, which included sentence for

homicide,

when

state

conceded

term

of

imprisonment

amounted

to

life

imprisonment for “offenses committed in a single course of conduct[]”); Budder, 851

F.3d at 1058 (asserting that states “may not take a single offense and slice it into

multiple sub offenses in order to avoid Graham’s rule[]”). Because the question

Proctor presents fails to take into account his commission of multiple offenses

across multiple episodes, review should be denied.

Proctor’s convictions for two batteries and an attempted capital murder

committed while an adult and while incarcerated for the crimes he committed as a

juvenile likewise counsel against review. While Proctor has completed serving his

aggregate 10-year sentence for those offenses, he assuredly is not in the same

position as offenders who only committed juvenile offenses. Cf. Graham, 560 U.S.

at 63 (distinguishing juveniles convicted of both a homicide and nonhomicide from

those convicted only of the latter and precluding life-without-parole sentences for

juveniles when convicted solely of a nonhomicide offense).

Moreover, Proctor’s

serving a since-vacated life-without-parole sentence no doubt played a role in his

receiving somewhat lenient sentences for the offenses he committed while he was

an adult. The paradoxical fact that he likely received reduced sentences as an adult

because he was already serving a now-reduced sentence for an offense that he

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committed as a juvenile makes his case a poor vehicle for deciding questions

concerning juvenile sentences.

Finally, changes in Arkansas law make this case a particularly inappropriate

vehicle for reviewing the questions presented. In particular, in 2017, the Arkansas

legislature adopted the Fair Sentencing of Minors Act of 2017. The Act makes

juvenile nonhomicide offenders eligible for parole no later than after they have

served 20 years of their sentences, regardless of whether they received “multiple

sentences . . . to be served consecutively or concurrently[.]” Ark. Code Ann. § 16-93621(a)(1) (Supp. 2017); see also Ark. Acts 2017, No. 539, §§ 1, 13. Thus, Proctor’s

petition, at best, presents questions that will not reoccur under Arkansas law. As

such, even if the questions presented in the abstract might warrant review,

Proctor’s case is a particularly poor vehicle in which to address them. This Court

should deny the petition.

CONCLUSION

For the foregoing reasons, the petition should be denied.

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