Lee Charles Millsap v. Dexter Payne, Director, Arkansas Department of Correction

2020 Ark. 401, 611 S.W.3d 479

• Court: Supreme Court of Arkansas
• Decided: December 3, 2020
• Status: Published

Opinion

Cite as 2020 Ark. 401 SUPREME COURT OF ARKANSAS No. CV-20-278

LEE CHARLES MILLSAP Opinion Delivered: December 3, 2020

APPELLANT PRO SE APPEAL FROM THE V. LINCOLN COUNTY CIRCUIT COURT [NO. 40CV-20-37] DEXTER PAYNE, DIRECTOR, ARKANSAS DEPARTMENT OF HONORABLE JODI RAINES DENNIS, CORRECTION JUDGE APPELLEE AFFIRMED.

RHONDA K. WOOD, Associate Justice

Lee Charles Millsap appeals the circuit court’s denial of his pro se petition for writ of

habeas corpus. He contends that he is being illegally held because there was a defect in the

amended felony information, he was not afforded a speedy trial, and his attorney was

ineffective for not raising this issue. Because these are not grounds for habeas relief, we

affirm the circuit court’s order.

I. Background

In 1998, Millsap entered a plea of guilty to capital murder, first-degree terroristic

threatening, and second-degree battery. He was sentenced to an aggregate term of life

imprisonment without parole. In 2020, Millsap petitioned for writ of habeas corpus. The

circuit court concluded none of the allegations were cognizable in a habeas proceeding and

denied relief. Millsap appealed. II. Grounds for Issuance of the Writ

A writ of habeas corpus is proper when a judgment and commitment order is facially

invalid or when a circuit court lacks jurisdiction over the case. Foreman v. State, 2019 Ark.

108, 571 S.W.3d 484. Jurisdiction is the power of the court to hear and determine the

subject matter in controversy. Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). When

the trial court has both personal jurisdiction over the appellant and jurisdiction over the

subject matter, the court has authority to adjudicate the case. Johnson v. State, 298 Ark. 479,

769 S.W.2d 3 (1989).

A petitioner who does not allege his actual innocence and proceed under Act 1780

of 2001, must plead either the judgment was facially invalid or the trial court lacked

jurisdiction and show probable cause, by affidavit or other evidence, that he is being illegally

detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). A circuit court’s inquiry is

limited to the facial validity of the judgment and commitment order. McArthur v. State, 2019

Ark. 220, 577 S.W.3d 385. Unless the petitioner can show that the trial court lacked

jurisdiction or that the commitment order was facially invalid, there is no basis for issuing a

writ of habeas corpus. Fields v. Hobbs, 2013 Ark. 416. This court will uphold a circuit court’s

decision on a petition for writ of habeas corpus unless it is clearly erroneous. Hobbs v. Gordon,

2014 Ark. 225, 434 S.W.3d 364. A decision is clearly erroneous when the appellate court,

after reviewing the entire evidence, is left with the definite and firm conviction that a

mistake has been made. Id.

2 III. Claims for Relief

First, Millsap argues that when the State amended the felony information and added

the charge of second-degree battery, it neglected to have it signed by the circuit clerk. He

argues this failure rendered the information constitutionally invalid and deprived the trial

court of jurisdiction to accept his guilty plea and enter the judgment. This court has held

that information-signature allegations are not jurisdictional. Randle v. Straughn, 2020 Ark.

117, at 3, 595 S.W.3d 361, 364. This makes an information potentially voidable, rather than

void, and a defendant must raise this at the time of trial. Id. When a defendant enters a plea

of guilty, the plea is his trial, and a habeas corpus proceeding does not allow a prisoner to

retry his case. Finney v. Kelley, 2020 Ark. 145, at 5, 598 S.W.3d 26, 29. The circuit court

did not err in denying habeas relief on this claim.

Millsap’s second claim for habeas relief is that the State failed to afford him a speedy

trial. As part of this claim, Millsap asserts that his counsel was ineffective for not making a

motion for dismissal and instead allowing him to enter a guilty plea. Although Millsap

pleaded guilty fourteen months after the first felony information was filed, his allegation is

insufficient here. A petitioner’s speedy-trial-violation claim is not within the purview of a

habeas proceeding because it is a claim of trial error that does not implicate the facial validity

of the judgment or the jurisdiction of the trial court. Williams v. Kelley, 2017 Ark. 200, at

4, 521 S.W.3d 104, 107. When Millsap argues that his attorney was ineffective for not

raising the speedy-trial issue, habeas is the incorrect avenue. Defendants should raise

allegations of ineffective assistance of counsel in a timely filed petition under Arkansas Rule

of Criminal Procedure 37.1 (2019). A habeas proceeding does not replace timely filing this

3 petition. Davis v. Kelley, 2019 Ark. 1, at 3, 564 S.W.3d 512, 514. Again, the circuit court

did not err in denying habeas relief on this ground. For the above reasons, we affirm.

Affirmed.

HART, J., dissents.

JOSEPHINE LINKER HART, Justice, dissenting. I dissent for the reasons stated in

Noble v. State, 2019 Ark. 284, 585 S.W.3d 671 (Hart, J., dissenting).

I dissent.

Lee Charles Millsap, pro se appellant.

Leslie Rutledge, Att’y Gen., by: David L. Eanes Jr., Ass’t Att’y Gen., for appellee.