Cite as 2016 Ark. 406 

No. CV-16-729

LEE CHARLES MILLSAP, JR. 

 APPELLANT

V.

WENDY KELLEY, DIRECTOR,

ARKANSAS DEPARTMENT OF 

CORRECTIONS

APPELLEES

Opinion Delivered November 17, 2016

PRO SE 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 

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(unpublished per curiam).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. 

SUPREME COURT OF ARKANSAS.
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2

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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3

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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4

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.