LEE CHARLES MILLSAP, JR. APPELLANT
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTIONS APPELLEES
MOTION FOR USE OF THE RECORD ON APPEAL AS A PAUPER AND FOR
EXTENSION OF TIME TO FILE APPELLANT'S BRIEF [LINCOLN
COUNTY CIRCUIT COURT, NO. 40CV-15-33 ] HONORABLE JODI RAINES
DISMISSED; MOTION MOOT
1998, appellant Lee Charles Millsap Jr., also known as
Solomon Millsap, pleaded guilty to capital murder,
terroristic threatening, and second-degree battery in the
stabbing death of his fiancée. He was sentenced to
life imprisonment without the possibility of parole and two
six-year terms to run concurrently with the life sentence.
Millsap thereafter sought postconviction relief pursuant to
Arkansas Rule of Criminal of Procedure 37.1 (1998), claiming
that his guilty plea was the result of ineffective assistance
of counsel. The petition was denied by the trial court, and
we affirmed the trial court's order, holding that the
guilty plea had been entered knowingly, intelligently, and
voluntarily with the assistance of competent counsel.
Millsap v. State, CR-99-437 (Ark. Sept. 21, 2000)
(unpublished per curiam). Millsap is currently incarcerated
in the Varner Unit of the Arkansas Department of Correction,
which is located in Lincoln County.
April 15, 2015, Millsap filed a pro se Petition for
Declaratory Judgment and Writ of Mandamus in the Circuit
Court of Lincoln County. In his petition, Millsap challenged
the constitutionality of Arkansas Code Annotated section
16-93-607(c)(1) (1987), which states in pertinent part that
inmates serving under a sentence of life imprisonment without
parole may be pardoned or have their sentence commuted by the
Governor as provided by law. Millsap argued that the statute
is unconstitutional as it is applied in that the Governor
does not have authority to grant clemency unless parole is
recommended by the Parole Board. Moreover, Millsap alleged
that the clemency provision in Arkansas Code Annotated
section 16-93-607 created an expectation of release should
the Governor grant a pardon, which, in turn, created a
liberty interest protected by due process.
circuit court dismissed the petition with prejudice finding
that the petition for declaratory relief and for a writ of
mandamus is a civil action that should have been filed in
Jefferson County, where Millsap was incarcerated, and,
further, that the Declaratory Judgment Act cannot be used to
challenge the discretion of the Arkansas Department of
Correction or the Governor to grant or deny parole. Millsap
has lodged an appeal of that order.
before this court is Millsap's motion for use of the
record on appeal as a pauper and for extension of time to
file his brief. This court treats declaratory judgment
proceedings as applications for postconviction relief in
those instances where a prisoner collaterally attacks a
judgment or sentence. Davis v. Hobbs, 2011 Ark. 249
(per curiam); see also Bailey v. State, 312 Ark.
180, 182, 848 S.W.2d 391, 392(1993) (per curiam) (A petition
for post-conviction relief attacking a judgment, regardless
of the label placed on it by the petitioner, is considered
pursuant to our postconviction rule.). An appeal from an
order that denied a petition for postconviction relief,
including civil postconviction remedies, will not be
permitted to go forward where it is clear that the appellant
could not prevail. Crawford v. Cashion, 2010 Ark.
124, at 2, 361 S.W.3d 268, 270 (per curiam). Because it is
clear that Millsap cannot prevail, we dismiss the appeal,
which renders Millsap's motion moot.
allegations set forth in Millsap's petition for
declaratory relief are in essence a challenge to the
constitutionality of a sentence of life without parole,
wherein Millsap contends that Arkansas Code Annotated section
16-93-607(c)(1), which gives the Governor discretion to grant
clemency, created a liberty interest. On this issue, Millsap
is mistaken, Arkansas statutes have not created a liberty
interest in parole eligibility. See Pittman v.
Gaines, 905 F.2d 199 (8th Cir. 1990) (holding that the
statute which provides in pertinent part that the parole
board may release an eligible prisoner under certain
conditions, does not create a liberty interest in parole
because the board's determinations regarding parole are
discretionary); see also Cridge v. Hobbs, 2014 Ark.
153, at 2 (per curiam) (There is no constitutional right or
entitlement to parole that would invoke due-process
as stated above, Millsap's allegations represent a
collateral attack on his judgment whereby he seeks to modify
the imposed life sentence by contending a constitutionally
protected right to parole eligibility. Where a petitioner
does not allege that a judgment of conviction is facially
invalid, a collateral attack on a judgment is not cognizable
in a declaratory judgment action. Johnson v. State,
340 Ark. 413, 413-14, 12 S.W.3d 203, 204 (2000)(per curiam).
Instead, Millsap's petition for declaratory relief is
treated as a request for postconviction relief regardless of
the label attached to the petition, and his claims for relief
are subject to the provisions of Rule 37.1. Bailey,
312 Ark. at 182, 848 S.W.2d at 392. According to the
provisions of Rule 37.2(b), "if a conviction was
obtained on a plea of guilty . . . a petition claiming relief
under this rule must be filed in the appropriate circuit
court within 90 days of the date of entry of judgment."
Millsap's petition collaterally attacking his sentence is
clearly untimely. Furthermore, Millsap's petition
represents a successive petition for postconviction relief,
and this court has consistently upheld the rule that a
petitioner is limited to one petition for postconviction
relief unless the first petition was specifically denied
without prejudice to allow the filing of a second petition.
McCuen v. State, 328 Ark. 46, 60, 941 S.W.2d 397,
404 (1997). As set forth above, Millsap's original Rule
37.1 petition for relief was denied by the trial court, and
we affirmed the denial of postconviction relief.
Millsap, CR-99-437 (Ark. Sept. 21, 2000)