      MEMORANDUM DECISION
                                                                    Nov 04 2015, 8:16 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Mario Allen                                              Gregory F. Zoeller
      Pendleton Correction Facility                            Attorney General of Indiana
      Pendleton, Indiana
                                                               Frances Barrow
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Mario Allen                                              November 4, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               48A02-1505-MI-416
              v.                                               Appeal from the Madison Circuit
                                                               Court.
                                                               The Honorable Thomas Newman,
      Wendy Knight, Superintendent                             Jr., Judge.
      of Correctional Industrial                               Cause No. 48C03-1503-MI-248
      Facility,
      Appellee-Respondent.




      Garrard, Senior Judge

[1]   Mario Allen appeals from the trial court’s order transferring a petition for writ

      of habeas corpus filed in the county of his incarceration to the county where he



      Court of Appeals of Indiana | Memorandum Decision 48A02-1505-MI-416 | November 4, 2015   Page 1 of 4
      was tried and sentenced, contending that the trial court abused its discretion by

      failing to rule on the merits of his petition. We affirm.


[2]   On June 24, 2004, Allen received an aggregate sentence of forty-five years for
                                            1                           2
      his convictions of robbery, attempted robbery, and the enhancement for his

      habitual offender adjudication in the LaPorte Superior Court. Allen is

      incarcerated at the Pendleton Correctional Industrial Facility in Madison

      County.


[3]   Allen timely initiated a direct appeal of his sentence on July 20, 2004; however,

      the public defender moved to withdraw from the matter citing a conflict of

      interest and sought an extension of time in which to file the opening brief. This

      Court granted both motions, but directed Allen to apply to the trial court for the

      appointment of subsequent pauper counsel to proceed with his appeal. No

      substitute counsel was appointed and after Allen filed numerous pro se motions

      with this Court, we issued an order directing the trial court to appoint successor

      pauper counsel for Allen. When the trial court failed to do so, we dismissed

      Allen’s appeal for failure to file an opening brief. After unsuccessfully

      attempting to obtain permission to pursue a belated appeal pursuant to Indiana

      Post-Conviction Rule 2(3), Allen filed a petition for post-conviction relief

      alleging ineffective assistance of counsel for his failed attempt to pursue a direct




      1
          Ind. Code § 35-42-5-1 (1984).
      2
          Ind. Code § 35-42-5-1 (robbery); Ind. Code § 35-41-5-1 (1977) (attempt).


      Court of Appeals of Indiana | Memorandum Decision 48A02-1505-MI-416 | November 4, 2015   Page 2 of 4
      appeal. The State conceded, and the trial court agreed, that Allen had been

      denied the right to counsel during his direct appeal. While the trial court agreed

      with the State that Allen was not entitled to immediate release or a new trial,

      the post-conviction court concluded that it was without the authority to

      reinstate Allen’s direct appeal. On appeal from that decision, we concluded

      that the appropriate remedy was to allow Allen to pursue his direct appeal with

      the assistance of appellate counsel appointed by the trial court, and reinstated

      his appeal. See Allen v. State, 959 N.E.2d 343 (Ind. Ct. App. 2011), trans. denied.

      We later affirmed his convictions on direct appeal. See Allen v. State, 994

      N.E.2d 316 (Ind. Ct. App. 2013).


[4]   On March 27, 2015, Allen filed a verified petition for writ of habeas corpus in

      the Madison Circuit Court alleging that “[b]ecause the June 17, 2011 grant of

      the Petitioner’s Indiana Post Conviction Rule 1 Petition has caused the

      Petitioner to be releaved [sic] of the commitment to serve in Respondent’s

      custody a sentence for a conviction imposed by the LaPorte County Superior

      Court the Restraint of Petitioner is unlawful.” Appellant’s App. p. 12.


[5]   It is clear from Allen’s petition that he is attacking the validity of his convictions

      and sentence and mistakenly believes that by granting him the opportunity to

      pursue a direct appeal this Court has overturned his convictions and sentence.

      Such is not the case as his convictions were affirmed on direct appeal. Both

      case law and the Rules of Procedure for Post-Conviction Relief support the

      Madison Circuit Court’s conclusion that it had jurisdiction to receive the filing

      of the petition for writ of habeas corpus, but the petition must then be

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transferred to the court where the petitioner was convicted or sentenced,

LaPorte Superior Court. Ind. Post-Conviction Rule 1(1)(c); Miller v. Lowrance,

629 N.E.2d 846, 847 (Ind. 1994).


Affirmed.


Riley, J., and Pyle, J., concur.




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