Clemmons v. Kelley

2021 Ark. 47

618 S.W.3d 128

Timothy Mack CLEMMONS, Appellant

v.Wendy KELLEY, Director, Arkansas Department of Correction, Appellee

No. CV-19-287

Supreme Court of Arkansas.

Opinion Delivered: March 4, 2021

Rehearing Denied April 22, 2021

Timothy Mack Clemmons, pro se appellant.

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

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, 2010 WL 4982951.

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 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, 2019 WL 5615959. 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 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.

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 first-degree 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...