Cite as 2021 Ark. 47

SUPREME COURT OF ARKANSAS

No. CV-19-287

TIMOTHY MACK CLEMMONS

APPELLANT

V.

WENDY KELLEY, DIRECTOR, 

ARKANSAS DEPARTMENT OF 

CORRECTION

APPELLEE

Opinion Delivered: March 4, 2021

PRO SE APPEAL FROM THE CHICOT

COUNTY CIRCUIT COURT

[NO. 09CV-19-5]

HONORABLE QUINCEY ROSS, 

JUDGE

AFFIRMED.

SHAWN A. WOMACK, Associate Justice

Timothy Clemmons appeals from the denial of his petition to proceed in forma pauperis 

in connection with a petition for a writ of habeas corpus. The circuit court determined that 

Clemmons failed to state a colorable cause of action. We agree and affirm.

I.

Following a heated telephone conversation with his ex-girlfriend, Clemmons fired five 

gunshots at her house from his car. Two bullets entered the bedroom where she and her two 

young children were playing. One child was shot and severely injured. Clemmons was 

convicted of three counts of unlawful discharge of a firearm from a vehicle. Each charge 

reflected each of the three individuals in the home. One count was in the first degree and two 

counts were in the second degree. He received a firearm enhancement and was sentenced as a 

habitual offender to an aggregate term of 72 years’ imprisonment. The Court of Appeals 

affirmed. See Clemmons v. State, 2010 Ark. App. 810.

In 2019, Clemmons petitioned for leave to proceed in forma pauperis on an underlying

petition for writ of habeas corpus. He sought habeas relief based on an alleged double jeopardy 
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violation and insufficient evidence supporting his firearm enhancement. We first reviewed this 

matter following the circuit court’s summary denial of the petition to proceed as a pauper. See 

Clemmons v. Kelley, 2019 Ark. 313. We remanded for specific findings of fact and conclusions 

of law under Arkansas Rule of Civil Procedure 72 (2018), which governs the right to proceed 

in forma pauperis in civil matters. Id. On remand, the circuit court reviewed the claims for 

habeas relief and concluded that the petition failed to state a colorable cause of action. It denied 

Clemmons’s petition to proceed as a pauper in a supplemental order. This appeal followed. 

II.

As a preliminary matter, we reject Clemmons’s contention that the circuit court merely 

reiterated its previous order summarily denying his petition. The initial order consisted of a 

one-sentence conclusory denial and failed to include any findings. On remand, the court 

entered a supplemental order with numerous paragraphs providing factual findings and 

conclusions of law. Though the petition to proceed as a pauper was denied in both orders, the 

supplemental order did not simply restate the original order. We may accordingly turn to the 

merits of the appeal.

In denying his petition to proceed in forma pauperis, Clemmons contends the circuit 

court wrongfully concluded that his double jeopardy claim failed to state a colorable cause of 

action.1 The right to proceed in forma pauperis is conditioned on the petitioner’s indigency and 

the circuit court’s satisfaction that the alleged facts indicate a colorable cause of action. Ark. R. 

Civ. P. 72(c). In ruling on a petition under Rule 72, the court “shall make a finding regarding 

indigency.” Id. If satisfied from the facts alleged that the petitioner has a colorable cause of 

1Clemmons’s challenge to the sufficiency of the evidence was abandoned on appeal. 
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action, the court may grant pauper status. Id. A colorable cause of action is a claim that is 

legitimate and may be reasonably asserted given the facts presented and the current law or a 

reasonable and logical extension or modification of it. See Watts v. Kelley, 2019 Ark. 207, at 2, 

575 S.W.3d 558, 559.

The denial of a petition to proceed in forma pauperis is reviewed for abuse of discretion. 

See Berger v. Bryant, 2020 Ark. 157, at 2, 598 S.W.3d 36, 38. Discretion is abused when the 

court acts arbitrarily or groundlessly. Id. Factual findings will not be disturbed absent clear error. 

Id. Rule 72(c)’s use of the mandatory “shall” obligates the court to make a finding regarding 

indigency. The circuit court failed to make this requisite finding. Instead, it addressed only 

whether the facts alleged a colorable cause of action. This omission was erroneous. See 

Clemmons, 2019 Ark. 313, at 2. Despite this error, if the underlying petition clearly fails to state 

a colorable cause of action, there has been no abuse of discretion and we may summarily affirm. 

See Berger, 2020 Ark. 157, at 2, 598 S.W.3d at 38.

In Clemmons’s underlying petition, he sought a writ of habeas corpus based on alleged 

violations of double jeopardy. As relevant here, a petitioner seeking a writ of habeas corpus 

must plead either the facial invalidity of the judgment or a lack of jurisdiction by the trial court. 

See id.; Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). The petitioner must make a showing 

by affidavit or other evidence of probable cause to believe that he is being illegally detained. Id. 

The burden is on the petitioner to establish with factual support that he is entitled to issuance 

of the writ. Id. A decision to deny a request for pauper status may turn on whether the petitioner 

pleaded sufficient facts in his habeas petition to support his claims for habeas relief. See Rea v. 

Kelley, 2019 Ark. 339, at 4, 588 S.W.3d 715, 718. 
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According to Clemmons, double jeopardy was violated because the three counts of 

unlawful discharge of a firearm arose from a single occurrence and each count required the same 

elements of proof. Some double jeopardy claims are cognizable in habeas proceedings. See Sims 

v. State, 2018 Ark. 271, at 3, 555 S.W.3d 868, 871. To allege a cognizable claim, Clemmons 

was required to show there was an illegal sentence imposed on the face of the commitment 

order. Id. He failed to do so.

The face of the judgment reflects that Clemmons was convicted of one count of firstdegree unlawful discharge of a firearm from a vehicle and two counts of the offense in the 

second degree. The first-degree offense, a class Y felony, occurs when a person “knowingly 

discharges a firearm from a vehicle and by the discharge of the firearm causes death or serious 

physical injury to another person.” See Ark. Code Ann. § 5-74-107(a) (Repl. 2005). The 

second-degree offense, a class B felony, occurs when a person “recklessly discharges a firearm 

from a vehicle in a manner that creates a substantial risk of physical injury to another person or 

property damage to a home, residence, or other occupiable structure.” See Ark. Code Ann. § 

5-74-107(b).

For purposes of double jeopardy, whether two offenses are the “same offense” turns on 

whether each statutory provision requires a proof of fact that the other does not. See Sims, 2018 

Ark. 271, at 3, 555 S.W.3d at 871. It is clear that the conviction for first-degree unlawful 

discharge of a firearm is not the same offense as second-degree unlawful discharge of a firearm. 

The first-degree offense requires proof of a fact that the offense caused serious injury to another 

person, whereas the second-degree offense requires proof that the offense created substantial 

risk of physical injury to another person or property damage. The two convictions for seconddegree discharge of a firearm appear on the face of the judgment to be the same offense. The 
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record, however, demonstrates that there was no double jeopardy violation. The charges were 

connected with two separate victims who were inside when Clemmons recklessly fired five 

shots at the home. The two convictions thus represent separate offenses of recklessly creating a 

substantial risk of harm to each victim. 

Moreover, each shot fired represented a separate offense. To determine whether a 

continuing offense is involved, we consider whether the individual acts or the course of action 

that they constitute are prohibited. See Lee v. State, 2017 Ark. 337, at 5, 532 S.W.3d 43, 51. If 

the individual acts are prohibited, each act is punishable separately. Id. If it is the course of action 

that is prohibited, there can be only one penalty. Id. Unlawful discharge of a firearm from a 

vehicle is clearly not a continuing offense. The culpable mental state for second-degree 

discharge of a firearm is directed at the individual act of recklessly firing the shots that 

endangered the inhabitants of the home. Though Clemmons’s actions took place during one 

period of time, each shot constituted a separate offense under section 5-74-107(b). There was 

accordingly no double jeopardy violation and Clemmons’s underlying petition for writ of 

habeas corpus clearly failed to allege a colorable cause of action. The decision to deny the 

petition to proceed in forma pauperis was therefore not an abuse of discretion.

Affirmed. 

Timothy Mack Clemmons, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.