Hamilton v. Az Boec

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

KELLY K. HAMILTON, Petitioner/Appellant,

v.

ARIZONA BOARD OF EXECUTIVE CLEMENCY, Respondent/Appellee.

No. 1 CA-CV 15-0085
FILED 3-1-2016

Appeal from the Superior Court in Maricopa County
No. CV2014-007590
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Kelly K. Hamilton, Yuma
Petitioner/Appellant

Arizona Attorney General’s Office, Phoenix
By Kelly Gillilan-Gibson
Counsel for Respondent/Appellee
 HAMILTON v. AZ BOEC
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Acting Presiding Judge John C. Gemmill and Judge Margaret H. Downie
joined.

T H U M M A, Judge:

¶1 Kelly K. Hamilton appeals from the superior court’s order
denying relief on his special action petition. Hamilton’s petition claimed
the Arizona Board of Executive Clemency violated his due process rights
when denying him parole. Because Hamilton has shown no error, the
superior court’s order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 In 1982, Hamilton entered into a plea pursuant to North
Carolina v. Alford, 400 U.S. 25 (1970), for first degree murder. The court
sentenced Hamilton to prison “for the rest of his natural life,” and ordered
“that he not be eligible for parole, commutation or suspension of this
sentence until he has served a minimum of twenty-five (25) years.”1
Beginning in 2007, Hamilton repeatedly, but unsuccessfully, petitioned
the Board to be granted parole. In 2012, Hamilton filed a petition for writ
of habeas corpus with the superior court, presenting various claims
regarding the Board’s denials of his petitions for parole. In reviewing the
superior court’s denial of that petition, and without expressing any view
on the merits of his claims, this court directed the superior court to treat
his petition as seeking special action relief and remanded for further
proceedings. See State v. Hamilton, 1 CA-CR 12-0748 (Ariz. App. Mar. 4,
2014) (mem. dec.).

¶3 On remand, the superior court accepted jurisdiction over
Hamilton’s special action petition but denied relief, finding Hamilton’s

1The Legislature later replaced the possibility of parole with eligibility for
“community supervision” for offenses committed after January 1, 1994.
See State v. Rosario, 195 Ariz. 264, 268 ¶ 26 (App. 1999). Given the date of
Hamilton’s offense, the possibility of parole remains the relevant inquiry.

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 HAMILTON v. AZ BOEC
Decision of the Court

claims were not subject to judicial review under Stinson v. Arizona Board of
Pardons and Paroles, 151 Ariz. 60 (1986). This court has jurisdiction over
Hamilton’s timely appeal pursuant to Arizona Revised Statutes (A.R.S.)
sections 12-120.21(A)(4) and -2101(A)(1) (2016).2

DISCUSSION

¶4 Hamilton argues the Board violated his due process rights
under the 14th Amendment by denying his requests for parole. The Board
has the authority to authorize the release of a prisoner certified as eligible
for parole if “it appears to the [B]oard, in [the Board’s] sole discretion, that
there is a substantial probability that the applicant will remain at liberty
without violating the law and that the release is in the best interests of the
state.” A.R.S. § 31-412(A) (emphasis added). Although judicial review of a
Board decision is available “to insure that the requirements of due process
have been met and that the [Board] has acted within the scope of its
powers,” courts are otherwise “precluded from reviewing the decision of
the” Board. Stinson, 151 Ariz. at 61 (citing Cooper v. Ariz. Bd. of Pardons &
Paroles, 149 Ariz. 182, 184-86 (1986)).

¶5 Although Hamilton argues the Board violated his due
process rights, the substance of his argument challenges the reasons for
the Board’s denial of his requests for parole. Hamilton argues the Board
could not consider immutable factors, such as the seriousness of the
offense, trauma to the victim and loss of human life, but those
considerations are within the Board’s discretion and beyond the power of
the courts to review. See Stinson, 151 Ariz. at 61 (holding reasons for
denial, such as seriousness of offense and age of victim, “are clearly within
the discretion of the Board and . . . can not be reviewed” by courts).
Hamilton has not presented any evidence that the Board denied him an
opportunity to be heard or present evidence. To the contrary, Hamilton
acknowledges he was present for the hearings and the Board provided a
written explanation for its denials of his requests for parole, including
listing the reasons for the denials. Accordingly, Hamilton has not shown
the superior court erred by denying relief.

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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 HAMILTON v. AZ BOEC
Decision of the Court

CONCLUSION

¶6 Because Hamilton has not shown error, the superior court’s
order denying his request for relief is affirmed.

:ama

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