      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
                                                                                FILED
      this Memorandum Decision shall not be                                 Oct 26 2018, 8:28 am

      regarded as precedent or cited before any                                 CLERK
                                                                            Indiana Supreme Court
      court except for the purpose of establishing                             Court of Appeals
                                                                                 and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      James E. Manley                                          Curtis T. Hill, Jr.
      New Castle, Indiana                                      Attorney General of Indiana
                                                               James B. Martin
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      James E. Manley,                                         October 26, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CP-1149
              v.                                               Appeal from the Monroe Circuit
                                                               Court
      State of Indiana,                                        The Honorable Elizabeth A. Cure,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               53C01-9810-CP-1461



      Mathias, Judge.

[1]   James Manley (“Manley”) has engaged in repeated attempts to challenge his

      1997 child molesting conviction. In this case, Manley is appealing the denial of


      Court of Appeals of Indiana | Memorandum Decision 18A-CP-1149 | October 26, 2018              Page 1 of 8
      a Trial Rule 60(B) motion in which he claimed that the 2001 order denying his

      petition for post-conviction relief is void. The trial court denied the motion, and

      we affirm.


                                 Facts and Procedural History
[2]   In 1997, Manley was convicted of two counts of Class A felony child molesting

      and two counts of Class B felony child molesting (“the criminal case”). The

      victim was his eight-year-old daughter. Manley was ordered to serve an

      aggregate fifty-five-year sentence in the Department of Correction. Manley’s

      convictions were affirmed on direct appeal. Manley v. State, No. 53A04-9806-

      CR-333, 708 N.E.2d 928 (Ind. Ct. App. Feb. 18, 1999).


[3]   Manley subsequently filed a petition for post-conviction relief raising eleven

      issues (the “post-conviction proceedings”). After an evidentiary hearing was

      held, the post-conviction court denied his petition on February 13, 2001.

      Manley appealed the denial, and our court affirmed the post-conviction court in

      a memorandum decision dated August 28, 2001. Manley v. State, No. 53A01-

      0103-PC-107 (Ind. Ct. App. Aug. 28, 2001), trans. denied.


[4]   Manley has continued to attempt to litigate the validity of his conviction and

      sentence over the last seventeen years. In 2004 and 2006, Manley sought

      permission from our court to file successive petitions for post-conviction relief.

      This court denied both requests. Also, in 2006, Manley filed a motion to modify

      his sentence. His motion was denied, and the trial court’s ruling was affirmed



      Court of Appeals of Indiana | Memorandum Decision 18A-CP-1149 | October 26, 2018   Page 2 of 8
      on appeal. See Manley v. State, 868 N.E.2d 1175 (Ind. Ct. App. 2007), trans.

      denied.


[5]   In 2014, Manley filed a motion for relief from judgment and motion for change

      of venue in his criminal case. In those motions, Manley alleged that “the child

      molesting statutes under which he was convicted are unconstitutionally

      overbroad, that he was privileged to engage in the sexual conduct at issue under

      the parental privilege to otherwise criminal acts, that material exculpatory

      information was withheld from him at trial, and that the trial court colluded

      with the State to withhold material evidence from him at trial[.]” Manley v.

      State, No. 53A01-1407-CR-317, 31 N.E.3d 1046, *1 (Ind. Ct. App. April 14,

      2015), trans. denied. The trial court denied his motions. On appeal, our court

      concluded that “Manley’s requests are collateral attacks of his convictions” and

      “have already been decided against him on prior appellate review.” Id. at *1–2.

      Because Manley’s motions were an impermissible attempt to litigate an

      unauthorized successive petition for post-conviction relief, our court dismissed

      his appeal. Id. at *2.


[6]   In December 2015, Manley filed his third petition seeking permission to file a

      successive post-conviction petition. His request was denied in February 2016.




      Court of Appeals of Indiana | Memorandum Decision 18A-CP-1149 | October 26, 2018   Page 3 of 8
[7]   Two months later, Manley filed a petition for writ of habeas corpus in Henry

      Circuit Court, which is the county where Manley is incarcerated.1 In his

      petition, Manley continued to claim that the child molesting statute was

      unconstitutional, that he did not receive a fair trial from an impartial tribunal,

      and that he was erroneously sentenced. Concluding that Manley’s petition

      equated to an unauthorized successive petition for post-conviction relief, the

      Henry Circuit Court dismissed his petition rather than transferring the petition

      to Monroe Circuit Court pursuant to Post-Conviction Rule 1. See Manley v.

      Butts, 71 N.E.3d 1153, 1155 (Ind. Ct. App. 2017), trans. denied. Our court agreed

      that Manley’s petition was an improper challenge to the validity of his

      convictions and sentence. Id. at 1156. However, we concluded that the Henry

      Circuit Court was required to transfer the petition to the court of conviction, i.e.

      the Monroe Circuit Court, under Post-Conviction Rule 1(1)(c). Our court also

      observed that the conviction court, not the habeas court, must determine

      whether Post-Conviction Rule 1(12), which governs successive petitions for

      post-conviction relief, is applicable. Id. at 1157.




      1
       Manley also filed a petition for habeas corpus in Henry Circuit Court alleging unlawful incarceration. See
      Manley v. Keith Butts and Geo Group, Inc., No. 33A05-1509-MI-1502, 47 N.E.3d 664 (Ind. Ct. App. Feb. 10,
      2016) (rejecting Manley’s claim that New Castle Correctional Facility lacks legal authority to have custody
      over him because the facility is operated by a private corporation), trans. denied. In addition, Manley filed a
      complaint for declaratory judgment against the “Monroe County Prosecutor” alleging that the “trial court
      violated judicial canons by asserting an affirmative defense on behalf of the prosecutor. Manley v. Monroe
      County Prosecutor, No. 53A01-1402-MI-65, 16 N.E.3d 488 at *1 (Ind. Ct. App. July 15, 2014), trans. denied.
      Manley attempted to challenge the constitutionality of the child molesting statute in his complaint. The trial
      court denied Manley’s motion, and the denial was affirmed on appeal. Id. at *1–2 (observing that Manley’s
      complaint was an attempt to collaterally challenge his conviction and sentence).

      Court of Appeals of Indiana | Memorandum Decision 18A-CP-1149 | October 26, 2018                     Page 4 of 8
[8]   In his challenges to his Indiana convictions in the federal court system, Manley

      has accumulated at least three “strikes” under 28 U.S.C. § 1915(g), which

      provides that a court may not grant a prisoner leave to proceed in forma

      pauperis


               if the prisoner has, on 3 or more prior occasions, while
               incarcerated or detained in any facility, brought an action or
               appeal in a court of the United States that was dismissed on the
               grounds that it is frivolous, malicious, or fails to state a claim
               upon which relief may be granted, unless the prisoner is under
               imminent danger of serious physical injury.


      Manley v. Ind. Dep’t of Correction, 2018 WL 4352636 *1 (S.D. Ind. Sept. 12, 2018)

      (quoting 28 U.S.C. § 1915(g)).


[9]   This appeal arises from the trial court’s denial of Manley’s Trial Rule 60(B)

      motion filed in the post-conviction proceedings.2 On May 29, 2018, Manley

      filed the motion, in which he alleges that retired Judge E. Michael Hoff, the

      trial judge who presided over his post-conviction proceedings, was listed as an

      attorney for the State of Indiana on the case summary for the direct appeal in

      his criminal case. Manley claims that therefore the judge should not have

      presided over his post-conviction petition and the 2001 judgment denying his

      petition for post-conviction relief is void. Appellant’s App. p. 82.




      2
       Manley has also appealed the denial of a Trial Rule 60(B) filed in his criminal case. See Manley v. State, 18A-
      CR-725. Today, our court dismissed Manley’s appeal after concluding once again that he is impermissibly
      attempting to litigate an unauthorized successive petition for post-conviction relief.

      Court of Appeals of Indiana | Memorandum Decision 18A-CP-1149 | October 26, 2018                    Page 5 of 8
[10]   The trial court denied Manley’s Trial Rule 60(B) motion after noting that

       “Judge E. Michael Hoff was listed as an attorney for the State of Indiana in

       error.” Id. at 85. Manley now appeals.


                                        Discussion and Decision
[11]   Manley continues to claim that retired Judge E. Michael Hoff lacked

       jurisdiction to preside over his post-conviction proceedings because he was

       listed as counsel for the State on Manley’s direct appeal of his criminal case.

       Judge Hoff was a judge of Monroe Circuit Court from 1993 to 2016. Due to a

       clerical error, the judge was incorrectly listed as counsel for the State of Indiana

       on the chronological case summary for Manley’s direct appeal of his 1997 child

       molesting convictions. Appellant’s Supp. App. p. 3. This error has since been

       corrected. Appellant’s App. p. 85.


[12]   Manley’s claim that Judge Hoff should have disqualified himself “to avoid the

       appearance of impropriety” lacks merit. See Appellant’s Br. at 16. We therefore

       affirm the trial court’s order denying Manley’s Trial Rule 60(B) motion.3




       3
        In his brief, Manley also argues that this court “improperly sua sponte applied the affirmative defense of
       waiver to Manley’s challenge to the constitutionality of Indiana Code [section] 35-42-4-3(a).” Appellant’s Br.
       at 18. His argument refers to our memorandum opinion affirming the denial of his petition for post-
       conviction relief. Manley v. State, No. 53A01-0103-PC-107 (Ind. Ct. App. Aug. 28, 2001), trans. denied.
       Manley could have properly raised this argument in a petition for rehearing pursuant to Appellate Rule 54 or
       a petition to transfer pursuant to Appellate Rule 57. He cannot now raise this argument for the first time in
       his brief on the appeal of the denial of his Trial Rule 60(B) motion. Therefore, we will not address the
       argument in this appeal.




       Court of Appeals of Indiana | Memorandum Decision 18A-CP-1149 | October 26, 2018                   Page 6 of 8
[13]   Finally, we remind Manley that collateral attacks of his convictions and

       sentence are not permitted under Indiana law. See e.g. Manley, No. 53A01-1407-

       CR-317, 31 N.E.3d 1046, Slip op. at *2. And Manley cannot circumvent this

       rule by filing Trial Rule 60(B) motions in his criminal case and/or his post-

       conviction proceedings.


[14]   Indiana Constitution Article 1, Section 12, the open courts clause, provides that

       all courts shall be open and that a remedy is to be afforded according to the law.

       However, Manley does not have a right to engage in abusive litigation, and the

       state has a legitimate interest in the preservation of valuable judicial and

       administrative resources. See Zavodnik v. Harper, 17 N.E.3d 259, 264 (Ind. 2014).


[15]   In addition to the remedies for frivolous litigation discussed in Zavodnik, we

       observe that Indiana Code section 35-50-6-5(a)(4) provides that an inmate may

       be deprived of earned credit time “[i]f a court determines that a civil claim

       brought by the person in a state or administrative court is frivolous,

       unreasonable, or groundless.”4


                [A] claim is frivolous if it is made primarily to harass or
                maliciously injure another, if the proponent is not able to make a
                good-faith and rational argument on the merits of the claim, or if
                the proponent cannot support the action by a good-faith and
                rational argument for extension, modification, or reversal of




       4
        “Before a person may be deprived of educational credit or good time credit, the person must be granted a
       hearing to determine the person’s guilt or innocence and, if found guilty, whether deprivation of earned
       educational credit or good time credit is an appropriate disciplinary action for the violation.” Ind. Code § 35-
       50-6-5(b).

       Court of Appeals of Indiana | Memorandum Decision 18A-CP-1149 | October 26, 2018                     Page 7 of 8
               existing law. A claim is “unreasonable” if, considering the
               totality of the circumstances, no reasonable attorney would
               consider the claim justified or worthy of litigation. A claim is
               “groundless” if there are no facts that support the legal claim
               relied upon.


       Sumbry v. Boklund, 836 N.E.2d 430, 431 (Ind. 2005).


[16]   Manley’s Trial Rule 60(B) motion filed in this case meets the definitions of

       frivolous, unreasonable and groundless claims. If Manley continues to file

       frivolous and groundless motions or petitions in an attempt to collaterally

       attack his convictions and sentence, we urge the trial court to consider the

       remedies discussed above. See Love v. State, 22 N.E.3d 663, 665 (Ind. Ct. App.

       2014), trans. denied.


[17]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CP-1149 | October 26, 2018   Page 8 of 8
