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                   SUPREME COURT OF ARKANSAS.
                                         No.   CV-16-729


                                                  Opinion Delivered November   17, 2016
LEE CHARLES MILLSAP, JR.
                     APPELLANT
                                                  PRO SE MOTION FOR USE OF THE
V.                                                RECORD ON APPEAL AS A PAUPER
                                                  AND FOR EXTENSION OF TIME TO
WENDY KELLEY, DIRECTOR,                           FILE APPELLANT’S BRIEF
ARKANSAS DEPARTMENT OF                            [LINCOLN COUNTY CIRCUIT
CORRECTIONS                                       COURT, NO. 40CV-15-33 ]
                     APPELLEES
                                                  HONORABLE JODI RAINES
                                                  DENNIS, JUDGE

                                                  APPEAL DISMISSED; MOTION
                                                  MOOT


                                        PER CURIAM


        In May 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 (unpublished per curiam).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.
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         On 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.

         The 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.

         Now 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

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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.

       The 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 protection.).

       Moreover, 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,

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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)

(unpublished). There is no demonstration that Millsap’s original Rule 37.1 petition was

dismissed without prejudice. Millsap failed to state a basis for declaratory relief, and instead

filed an untimely and successive petition for postconviction relief. Without establishing a

right to declaratory judgment, Millsap provided no basis for a writ of mandamus to issue.

Crawford, 2010 Ark. 124, at 2, 361 S.W.3d at 270.

       Appeal dismissed; motion moot.




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