      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                            Oct 26 2018, 8:59 am
      court except for the purpose of establishing
                                                                                CLERK
      the defense of res judicata, collateral                               Indiana Supreme Court
                                                                               Court of Appeals
      estoppel, or the law of the case.                                          and Tax Court




      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-CR-725
              v.                                               Appeal from the Monroe Circuit
                                                               Court
      State of Indiana,                                        The Honorable Marc R. Kellams,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               53C02-9702-CF-74



      Mathias, Judge.

[1]   James E. Manley (“Manley”) appeals the trial court’s denial of his Trial Rule

      60(B) Motion for Relief from Judgment filed on March 5, 2018 seeking relief


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-725 | October 26, 2018               Page 1 of 10
      from a judgment of conviction on four counts of Child Molesting entered on

      November 26, 1997. He claims, as he has on prior occasions, that the child

      molestation statutes under which he was convicted are unconstitutional.


[2]   We dismiss his appeal.


                                 Facts and Procedural History
[3]   The facts of this matter are substantially similar to the facts in Manley v. State,

      Case No. 18A-CP-1149, also handed down on today’s date. However, the facts

      as they are pertinent to this appeal are recited below.


[4]   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).


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

      issues (the “post-conviction proceedings”), including the present claims that the

      statute defining the offense of child molesting is unconstitutional. 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.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-725 | October 26, 2018   Page 2 of 10
[6]   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

      on appeal. See Manley v. State, 868 N.E.2d 1175 (Ind. Ct. App. 2007), trans.

      denied.


[7]   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.


[8]   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-CR-725 | October 26, 2018   Page 3 of 10
[9]   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 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. Keith

      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 & 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-CR-725 | October 26, 2018                     Page 4 of 10
[10]   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)).


[11]   On May 29, 2018, Manley also filed a 60(B) motion in his post-conviction

       proceedings, in which he alleged 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 claimed that therefore the judge should not have

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

       petition for relief is void. The trial court denied Manley’s 60(B) motion after

       noting that “Judge E. Michael Hoff was listed as an attorney for the State of

       Indiana in error.” We also affirm the trial court’s ruling in an opinion handed

       down on today’s date. See Manley v. State, Case No. 18A-CP-1149, Slip op. at 8.


[12]   In the instant matter, Manley appeals the denial of a Trial Rule 60(B) motion he

       filed in his criminal case on March 5, 2018. He claims his convictions are void.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-725 | October 26, 2018   Page 5 of 10
       In support of his motion, Manley continues to claim that the child molesting

       statutes under which he was convicted are unconstitutionally overbroad and

       that parental privilege allowed him to engage in the criminal sexual conduct for

       which he was convicted. In an argument that he did not raise in his Trial Rule

       60(B) motion or its supporting memorandum, Manley also raises the argument

       on appeal that the convicting trial court could not exercise jurisdiction

       concurrent with a related child in need of services (CHINS) case.


                                      Discussion and Decision
[13]   The doctrine of res judicata, whether in the form of claim preclusion or issue

       preclusion, “prevents the repetitious litigation of that which is essentially the

       same dispute.” State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000). A petitioner for

       post-conviction relief cannot escape the effect of claim preclusion merely by

       using different language to phrase an issue and define an alleged error. Maxey v.

       State, 596 N.E.2d 908, 911 (Ind. Ct. App. 1992). Post-conviction proceedings

       do not afford criminal defendants the opportunity for a “super-appeal.” Bailey v.

       State, 472 N.E.2d 1260, 1263 (Ind. 1985); Langley v. State, 267 N.E.2d 538, 544

       (1971). As a general rule, when we decide an issue on direct appeal, the

       doctrine of res judicata applies, thereby precluding its review in post-conviction

       proceedings. Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994).


[14]   An individual wishing to challenge a conviction and sentence collaterally may

       present this challenge in a post-conviction proceeding. See Ind. Post-Conviction

       Rule 1. A person who has already availed himself of one post-conviction


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-725 | October 26, 2018   Page 6 of 10
       proceeding must follow specific procedures for requesting successive collateral

       review. The rule states


                [t]he court will authorize the filing of the petition if the petitioner
                establishes a reasonable possibility that the petitioner is entitled
                to post-conviction relief. In making this determination, the court
                may consider applicable law, the petition, and materials from the
                petitioner’s prior appellate and post-conviction proceedings
                including the record, briefs and court decisions, and any other
                material the court deems relevant.


       Ind. Post-Conviction Rule 1, Section 12; Young v. State, 888 N.E.2d 1255, 1257

       (Ind. 2008); Lambert v. State, 867 N.E.2d 134, 137 (Ind. 2007). Where a

       petitioner fails to obtain permission to file a successive petition as required by

       the rules, dismissal is appropriate. State ex. rel. Woodford v. Marion Superior Court,

       655 N.E.2d 63, 66 (Ind. 1995) (affirming trial court order to dismiss successive

       post-conviction petition where petitioner did not obtain jurisdiction to entertain

       petition.)


[15]   Indiana courts have already adjudicated Manley’s present arguments on

       numerous occasions. In the memorandum submitted in support of his pleading

       styled as a 60(B) motion, Manley argues that the child molesting statutes under

       which he was convicted are unconstitutionally overbroad and his convictions

       are therefore void.2 Manley has repeatedly, and unsuccessfully, made these




       2
         Manley also raises the argument that the convicting criminal court could not exercise concurrent
       jurisdiction with the juvenile court in a related CHINS matter. Because he did not raise this issue in his

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-725 | October 26, 2018                     Page 7 of 10
       identical claims. He initially brought the claims in his petition for post-

       conviction relief. When his successive requests to file a request for post-

       conviction relief were not granted, he brought the same constitutional claims,

       also styled as a Trial Rule 60(B) motion, in 2015. Our court rejected this claim

       as an unauthorized successive petition for post-conviction relief. In the instant

       matter, Manley yet again filed a Trial Rule 60(B) motion with the trial court

       instead of seeking permission to file a successive petition for conviction relief.3

       Although framed as a motion for relief of judgment, Manley’s current claims

       are another unauthorized collateral attack on his convictions.


[16]   We agree with the State that Manley is simply attempting to circumvent our

       court’s prior orders denying his requests for authorization to file a successive

       post-conviction petition. Accordingly, we dismiss this appeal.


[17]   We also note that 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




       pleading styled as a Trial Rule 60(B) motion, the argument is waived. See Goodner v. State, 685 N.E.2d 1058,
       1060 (Ind. 1997); State v. Delph, 875 N.E.2d 416, 422 (Ind. Ct. App. 2007), trans. denied.
       3
         We also note that the plain language of Trial Rule 60(B) requires that a motion for relief from judgment for
       the reason that judgment is void must be filed “within a reasonable time.” Ind. Trial Rule 60(B)(6). The
       judgment which Manley challenges was entered over twenty years ago, in 1997. As discussed throughout,
       Manley also raises claims that have previously been unsuccessful in litigation in his 60(B) motion. Based on
       these facts, under an ordinary 60(B) analysis, we could not conclude that Manley filed the instant 60(B)
       motion “within a reasonable time.”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-725 | October 26, 2018                   Page 8 of 10
       valuable judicial and administrative resources. See Zavodnik v. Harper, 17 N.E.3d

       259, 264 (Ind. 2014).


[18]   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
                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).


[19]   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




       4
        “Before a person may be deprived of educational credit or good time credit, the person much 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-CR-725 | October 26, 2018                     Page 9 of 10
       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.


                                                 Conclusion
[20]   Manley’s claims are collateral attacks on his convictions and are barred by res

       judicata. Moreover, because he failed to follow the proscribed appellate

       procedure for post-conviction relief, we dismiss this appeal.


[21]   Dismissed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-725 | October 26, 2018   Page 10 of 10
