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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Plaintiff/Appellant,

v.

ARIZONA BOARD OF EXECUTIVE CLEMENCY, Defendant/Appellee.

No. 1 CA-CV 23-0397 

Appeal from the Superior Court in Maricopa County

No. LC2023-000043-001

The Honorable Margaret LaBianca, Judge

AFFIRMED

COUNSEL

Kelly K. Hamilton, Eloy

Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix

By Kelly Gillilan-Gibson

Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.

FILED 3-26-2024
HAMILTON v. AZ BD OF CLEMENCY

Decision of the Court

2

B A I L E Y, Judge:

¶1 Kelly K. Hamilton appeals a superior court order denying 

relief on his special action petition. For the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 Hamilton is an inmate serving a life sentence for first-degree 

murder committed in 1982. He has repeatedly petitioned the Arizona 

Board of Executive Clemency (“the Board”) for parole since becoming 

eligible. Beginning in January 2007, the Board has held semiannual 

hearings to determine whether to grant Hamilton parole; it has denied him 

each time thus far.

¶3 In February 2023, Hamilton filed a special action petition in 

the superior court alleging the Board had been applying the wrong version 

of Arizona Revised Statutes (“A.R.S.”) section 31-412 to his parole 

applications and thus violated his due process rights. Specifically, 

Hamilton claimed the Board retroactively applied a later version of § 31-

412(A) when it should have applied the version in effect at the time of his

1982 offense.

1 Hamilton also argued that under the 1982 version, the 

Board’s review is limited to the applicant’s institutional record, and under 

this standard, an applicant with a good institutional record should be 

granted parole.

¶4 The Board agreed the 1982 version applied to Hamilton’s case

and asserted it had been using the 1982 version in all of Hamilton’s

hearings. The Board attached copies of its written denials to prove its 

correct statutory application. Each written denial included the following 

statement: “The Board believes that you would not remain at liberty 

without violating the law[.]” The Board contended these written denials 

1 At the time of Hamilton’s 1982 offense, § 31-412 provided that the Board 

shall authorize the release of the eligible parole applicant “unless it appears 

to the board, in their sole discretion, that there is a substantial probability 

that the applicant will not remain at liberty without violating the law.” 

A.R.S. § 31-412(A) (Supp. 1982). The current version provides that the 

Board shall authorize the release of the eligible parole applicant if “it 

appears to the board, in its 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).
HAMILTON v. AZ BD OF CLEMENCY

Decision of the Court

3

show that the 1982 version of the statute was applied to Hamilton’s 

applications.

¶5 The Board also asserted that under Cooper v. Arizona Board of 

Pardons & Paroles, it can consider the totality of Hamilton’s case when 

making parole determinations and is not limited to considering only his 

institutional record. 149 Ariz. 182, 185 (1986) (recognizing the Board can 

consider factors such as the seriousness of the offense and the age of the 

victim when making a parole determination).

¶6 The superior court found the Board’s written denial statement 

“mirrors the language of A.R.S. § 31-412(A) in effect in 1982.” And although 

the Board used the term “believes” instead of “appears . . . there is a substantial 

probability” Hamilton would not remain at liberty without violating the 

law,

2 the court concluded the language difference “does not establish that 

the Board is utilizing the wrong version of the statute.” (Emphasis added). 

The court also rejected Hamilton’s interpretation of § 31-412(A), including 

his argument that he was entitled to parole if he had a good institutional 

record.

¶7 Finding “the Board has not retroactively applied the current 

version of A.R.S. § 31-412(A) to its review of Mr. Hamilton’s case,” the court

denied relief in his special action petition. The court also denied his motion 

to reconsider.

¶8 Hamilton timely appealed, and we have jurisdiction pursuant 

to A.R.S. §§ 12-120.21(A)(4) and -2101(A)(1).

DISCUSSION

¶9 The issues Hamilton raises rely on his assertion that the Board 

applied the wrong version of § 31-412(A) to his parole applications. We

review the superior court’s denial of special action relief for an abuse of 

discretion. Hormel v. Maricopa Cnty., 224 Ariz. 454, 458, ¶ 16 (App. 2010).

¶10 In its denial statements, the Board stated its belief that 

Hamilton “would not remain at liberty without violating the law,” which 

tracks the language in the 1982 version of the statute: “applicant will not 

remain at liberty without violating the law.” A.R.S. § 13-412(A) (Supp. 

1982). In each written denial, the Board enumerated its reasons for 

believing that Hamilton would not remain at liberty without violating the 

2 See A.R.S. § 31-412(A) (Supp. 1982).
HAMILTON v. AZ BD OF CLEMENCY

Decision of the Court

4

law, including “serious & violent offense,” “trauma to the victim,” “loss of 

human life,” “prior criminal history,” “prior escape,” “needs closer 

supervision,” “violated prev[ious] probation/parole,” “age of the victim,” 

and “extreme brutality of instant offense.”

¶11 Hamilton presents no evidence that the Board failed to apply 

the 1982 version to his parole applications. While he may disagree with the 

Board’s determinations, the Board retains sole discretion to grant or deny 

parole. Stewart v. Ariz. Bd. of Pardons & Paroles, 156 Ariz. 538, 540 (App. 

1988). Our review is limited to ensuring the requirements of due process 

have been met and that the Board acted within the scope of its powers. Id.; 

see also Stinson v. Ariz. Bd. of Pardons & Paroles, 151 Ariz. 60, 61 (1986).

¶12 Hamilton also argues the Board’s consideration of “home 

arrest” shows the Board used the current version of § 31-412(A) to deny him 

parole. But Hamilton raised this issue for the first time in his motion to 

reconsider and therefore waived it on appeal. See Ramsey v. Yavapai Fam. 

Advoc. Ctr., 225 Ariz. 132, 137, ¶ 18 (App. 2010).

¶13 Because the record shows the Board applied the 1982 version 

of § 31-412(A) to Hamilton’s parole applications—the threshold issue in this 

appeal—we do not address his remaining arguments.

CONCLUSION

¶14 We affirm the superior court’s order denying relief on 

Hamilton’s special action petition.