Timothy Mack Clemmons v. Wendy Kelley, Director, Arkansas Department of Correction

2019 Ark. 313

• Court: Supreme Court of Arkansas
• Decided: October 31, 2019
• Status: Published

Opinion

Digitally signed by Susan P. Williams Reason: I attest to the accuracy and integrity of Cite as 2019 Ark. 313 this document Date: SUPREME COURT OF ARKANSAS 2022.07.21 No. CV-19-287 16:04:18 -05'00'

Opinion Delivered: October 31, 2019 TIMOTHY MACK CLEMMONS APPELLANT PRO SE APPEAL FROM THE V. CHICOT COUNTY CIRCUIT COURT WENDY KELLEY, DIRECTOR, [NO. 09CV-19-5] ARKANSAS DEPARTMENT OF CORRECTION HONORABLE QUINCEY ROSS, APPELLEE JUDGE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW.

SHAWN A. WOMACK, Associate Justice

Appellant Timothy Mack Clemmons filed a pro se petition for leave to proceed in

forma pauperis in the circuit court of the county where he is incarcerated, and he appeals

the order denying that petition. Clemmons sought to proceed as a pauper with a petition

for writ of habeas corpus. The circuit court found that the in forma pauperis petition should

be denied without elaboration, and Clemmons contends that the order is insufficient. He

asks that this court remand for further findings of fact. The appellee, who is the director of

the Arkansas Department of Correction, agrees that the order is not sufficient for appellate

review and concedes that a remand is warranted. We remand for the circuit court to provide

findings of fact and conclusions of law on Clemmons’s indigency and whether the pro se

habeas petition that Clemmons would pursue puts forth a colorable cause of action. Arkansas Rule of Civil Procedure 72 (2018) conditions the right to proceed in forma

pauperis in civil matters on indigency and the circuit court’s satisfaction that the alleged facts

indicate “a colorable cause of action.” Ark. R. Civ. P. 72(c). Rule 72 mandates that the

circuit court make a specific finding of indigency based on the petitioner’s affidavit. Gardner

v. Kelley, 2018 Ark. 212, 549 S.W.3d 349. While it is erroneous not to include findings on

the petitioner’s indigency, when there are obvious defects in the underlying petition, this

court may nevertheless dispose of an appeal from the denial of in forma pauperis

proceedings. Burgie v. State, 2019 Ark. 77. If the underlying petition clearly fails to state a

colorable cause of action, there has been no abuse of discretion, and this court may

summarily affirm the denial of in forma pauperis status. Id.

Clemmons sought to challenge two judgments in his habeas petition that he would

pursue as a pauper: one reflecting his conviction on three counts of unlawful discharge of a

firearm, and another on a charge for possession of a firearm. Clemmons sought habeas relief

on two bases. He alleged a double-jeopardy violation in the three convictions for unlawful

discharge and insufficient evidence to support the conviction for possession. Challenges to

the sufficiency of the evidence fall outside the scope of habeas proceedings. Ratliff v. Kelley,

2018 Ark. 105, 541 S.W.3d 408. Some claims of double jeopardy, however, are cognizable

in a habeas proceeding. Pelletier v. Kelley, 2018 Ark. 347, 561 S.W.3d 730. Yet when the

petitioner does not demonstrate that on the face of the commitment order there was an

illegal sentence imposed, a double-jeopardy claim does not implicate the jurisdiction of the

court to hear the case, and the claim is not cognizable. Edwards v. Kelley, 2017 Ark. 254,

526 S.W.3d 825; see also Sims v. State, 2018 Ark. 271, 555 S.W.3d 868 (holding that when

2 rape and incest required the satisfaction of different elements, appellant’s double-jeopardy

claim was not one cognizable for the writ).

Clemmons alleged at least one basis for the writ that is potentially cognizable in

proceedings for the writ, and while the claim may fail under further scrutiny, it is not

obviously defective. Because the circuit court provided no findings and the director has not

alleged at this juncture that the habeas petition contains obvious defects, we remand without

further considering whether the petition stated a colorable cause of action. The circuit court

is to enter its order setting forth its findings in accordance with Rule 72 as directed in this

opinion, and the supplemental record containing the order is to be returned within thirty

days from the date of this opinion. Once the supplemental record is received, our clerk is

directed to set a new briefing schedule.

Remanded for findings of fact and conclusions of law.

Timothy Mack Clemmons, pro se appellant.

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