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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

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 

2

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 

 

1 The 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. 
HAMILTON v. AZ BOEC 

Decision of the Court 

3

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. 

 

2 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated. 
HAMILTON v. AZ BOEC 

Decision of the Court 

4

CONCLUSION 

¶6 Because Hamilton has not shown error, the superior court’s 

order denying his request for relief is affirmed.