THOMAS RAY, Magistrate Judge.
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;
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 6-10.)
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 five-year 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 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.
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 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:
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 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.
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, 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).
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.
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.
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.
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 of his arrest on the federal charge, until he completed his federal sentence on July 12, 2012.
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.
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 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.
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 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"
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 eight-year 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.
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 2004-487 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 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.
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 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.) 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!
On April 29, 2008, Kelley filed a pro se § 2254 habeas action challenging the 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 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.
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 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).
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:
(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.
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 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.
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:
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.
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 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 Response
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.)
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.
IT IS SO ORDERED.
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.
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.
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.
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 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.
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.
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:
Kelley v. Hobbs, 2012 Ark. 402, at *2.
