Conley v. Kelley, 566 S.W.3d 116

Background

Vernell Conley was tried by jury on delivery of crack (Count 1), possession of marijuana with intent to deliver (Count 2), and possession of drug paraphernalia (Count 3); jury convicted on delivery and paraphernalia and guilty of lesser-included simple possession for Count 2. He was sentenced as a habitual offender to 60 years (delivery), 6 years (marijuana), and 30 years (paraphernalia), plus an earlier consecutive term.
On direct appeal the Court of Appeals declined to reach sufficiency issues; Conley pursued a Rule 37 petition alleging ineffective assistance for, among other things, failure to make specific directed-verdict motions.
The Arkansas Supreme Court in Conley v. State reversed the possession convictions on ineffective-assistance grounds and directed dismissal of those two counts, but did not order resentencing on the delivery conviction; mandate issued May 6, 2014.
The trial court later entered an order dismissing the two possession counts but did not enter a new judgment and commitment reflecting only the delivery conviction or conduct a new sentencing hearing; Conley remained serving the 720-month delivery sentence.
Conley filed a state habeas petition (Lincoln County) asserting: the judgment/commitment is void/defective because it still reflects dismissed counts; the delivery sentence is unlawful because the sentencing jury considered evidence tied to the vacated counts; and his due-process rights were violated. The circuit court dismissed the habeas petition; this appeal followed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Conley’s claims were cognizable in habeas	Conley: habeas proper because judgment still reflects dismissed counts and he is unlawfully detained	State: habeas cannot relitigate issues resolved on appeal or Rule 37; no probable cause of unlawful detention	Court: claims not appropriate for habeas; dismissal affirmed
Whether the judgment and commitment is void/defective because it still lists dismissed counts	Conley: judgment is facially defective and court should have directed resentencing or corrected record	State: delivery sentence lawful and within statutory range; no authority requires new judgment where dismissed counts are not being executed	Court: judgment not facially invalid as to delivery sentence; habeas relief not available
Whether the sentencing was tainted because jury considered evidence tied to vacated counts	Conley: jury considered evidence of vacated counts during penalty phase, so delivery sentence may be invalid	State: evidentiary or trial errors do not render sentence facially invalid or strip jurisdiction; such claims are not cognizable in habeas	Court: claim not cognizable in habeas; dismissal affirmed
Whether due-process/Eighth Amendment violated by imposition of 60-year term influenced by vacated counts	Conley: due process and proportionality violated because jury considered irrelevant/off-count evidence and sentence is excessive	State: no showing that sentence is outside statutory limits or facially invalid; habeas not the vehicle	Court: due-process and proportionality assertions do not show facial invalidity or lack of jurisdiction; denial affirmed

Key Cases Cited

Conley v. State, 433 S.W.3d 234 (Ark. 2014) (affirmed in part, reversed in part on Rule 37; dismissal of possession counts directed)
Philyaw v. Kelley, 477 S.W.3d 503 (Ark. 2015) (habeas cognizable when judgment facially invalid or court lacked jurisdiction)
Rayford v. Kelley, 507 S.W.3d 483 (Ark. 2016) (jurisdiction defined as power to hear and determine criminal statutes)
Williams v. Kelley, 521 S.W.3d 104 (Ark. 2017) (habeas not available absent facial invalidity or want of jurisdiction)
Jackson v. Norris, 426 S.W.3d 906 (Ark. 2013) (postconviction/habeas principles after Eighth Amendment developments)
Buckley v. State, 20 S.W.3d 331 (Ark. 2000) (sentencing-phase evidentiary error does not render sentence facially invalid)
Taylor v. State, 125 S.W.3d 174 (Ark. 2003) (sentence void where court lacked statutory authority to impose it)
Kelly v. State, 85 S.W.3d 893 (Ark. 2002) (jurors are presumed to follow instructions)