Millsap v. Kelley
2016 Ark. 406
| Ark. | 2016Background
- In 1998 Lee Charles Millsap Jr. pleaded guilty to capital murder and related offenses and was sentenced to life without parole plus concurrent terms; his initial Rule 37.1 postconviction petition was denied and that denial was affirmed.
- In April 2015 Millsap, pro se and incarcerated in the Varner Unit (Lincoln County), filed a petition for declaratory judgment and writ of mandamus challenging Ark. Code § 16-93-607(c)(1), arguing the Governor lacks clemency authority absent a Parole Board recommendation and that the statute created a liberty interest in clemency/parole.
- The Lincoln County Circuit Court dismissed the petition with prejudice, finding the Declaratory Judgment Act improper for attacking parole/clemency discretion and that venue was improper (Jefferson County where incarcerated).
- This appeal followed along with Millsap’s motion for use of the record as a pauper and for extension to file his brief.
- The Supreme Court treated the petition as a collateral postconviction attack subject to Rule 37.1 and concluded Millsap could not prevail because there is no statutory liberty interest in parole/clemency, and his filing was untimely and successive.
- The Court dismissed the appeal as meritless and rendered Millsap’s motion moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ark. Code § 16-93-607(c)(1) creates a constitutionally protected liberty interest in clemency/parole | Millsap: statute and clemency language created an expectation of release, thus a due-process liberty interest | State: statutes confer discretionary clemency/parole; no entitlement or constitutional liberty interest | No liberty interest; statutes do not create a due-process right to parole/clemency |
| Whether declaratory-judgment/writ of mandamus was a proper vehicle to attack sentence | Millsap: sought declaratory relief and mandamus to compel recognition of alleged right to clemency/parole | State: claim is a collateral attack on sentence and not cognizable as a declaratory-judgment action; mandamus requires a right to compel | Petition was actually a collateral postconviction attack and not appropriate for declaratory relief or mandamus |
| Whether the petition was timely and procedurally proper under Rule 37.1 | Millsap: (implicitly) proceeded pro se and filed in 2015 challenging clemency statute | State: Rule 37.2(b) required filing within 90 days after judgment for guilty pleas; this is untimely and successive given prior Rule 37.1 petition | Petition is untimely and a successive Rule 37.1 petition; not permitted |
| Whether appeal should proceed and Millsap’s pauper/extension motion be granted | Millsap: requested use of record as pauper and extension to file brief | State: appeal is meritless and should be dismissed; motion moot if appeal dismissed | Appeal dismissed as Millsap cannot prevail; pauper/extension motion moot |
Key Cases Cited
- Bailey v. State, 312 Ark. 180 (Ark. 1992) (postconviction petitions labeled differently are treated under Rule 37)
- Crawford v. Cashion, 361 S.W.3d 268 (Ark. 2010) (appeal of postconviction denial will not proceed where appellant cannot prevail)
- Pittman v. Gaines, 905 F.2d 199 (8th Cir. 1990) (parole statutes that grant discretion do not create a liberty interest in parole)
- Johnson v. State, 340 Ark. 413 (Ark. 2000) (collateral attacks on judgment are not cognizable in declaratory-judgment actions)
- McCuen v. State, 328 Ark. 46 (Ark. 1997) (petitioner is limited to one Rule 37 postconviction petition unless prior denial was without prejudice)